Procedures for Indemnification. The procedures for indemnification shall be as follows: (a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party. (b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is). (c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expense. (d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible. (e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim. (f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 2 contracts
Sources: Merger Agreement (Hadron Inc), Merger Agreement (Analex Corp)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “As used herein, an "Indemnified Party”" means a Party seeking indemnification for any Loss (including, but not limited to attorneys fees) shall promptly give notice pursuant to Section 10.2 or 10.3 hereof, as applicable, and the party from whom the indemnification is claimed (the “term "Indemnifying Party”) " means the Party who is obligated to provide indemnification under Section 10.2 or Section 10.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any claim whether between the parties event, or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such any claim, and (ii) the amount of the claim. If a claim relates to an action, suit, demand, assessment, investigation, arbitration or other proceeding filed by or in respect of a third party against the Indemnified (a "Third Party Claim") of which it has knowledge, for which such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunderunder this Article 10. In the case of a Third Party Claim, the Indemnifying Party shall will have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense to expense. In such case, the Indemnified Party may participate in orsuch defense, if it so elects, to assume control but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such claimThird Party Claim, and the Indemnifying Party will reimburse the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for all its reasonable actual out-of-pocket expense costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party as will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the result Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld) or unless a final judgment from which no appeal may be taken by or on behalf of a request the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party to so cooperatewithout the written consent of the Indemnified Party, which consent will not be unreasonably withheld. If the Indemnifying Party elects fails to assume control of defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of any third-party claimsuch Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party shall will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such claim at its own expenseThird Party Claim.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Epic Energy Resources, Inc.), Membership Interest Purchase Agreement (Epic Energy Resources, Inc.)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The If a claim or demand is made against a SpinCo Indemnitee or a Parent Indemnitee (each, an "Indemnitee") by any Third Party (a "Third-Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the party claiming the which is or may be required pursuant to Section 3.1 or Section 3.2 hereof to make such indemnification (the “Indemnified "Indemnifying Party”") in writing, and in reasonable detail, of the Third-Party Claim promptly (and in any event within seven Business Days) after receipt by such Indemnitee of written notice of the Third-Party Claim; provided, however, that failure to give such notification shall promptly give notice not affect the indemnification provided hereunder except to the party from whom extent the indemnification is claimed (Indemnifying Party shall have been actually prejudiced as a result of such failure. Thereafter, the “Indemnitee shall deliver to the Indemnifying Party”, promptly (and in any event within five Business Days) after the Indemnitee's receipt thereof, copies of any claim whether between all notices and documents (including court papers) received by the parties or brought by a third party against Indemnitee relating to the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claimThird-Party Claim. If a claim relates to Third-Party Claim is made against an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claimIndemnitee, the Indemnifying Party shall have be entitled to participate in the defense thereof and, if it so elects in accordance with this Section 3.3(a), 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, within thirty days (30) days in which to make such investigation or sooner if the nature of the claim as Third-Party Claim so requires), notify the Indemnitee in writing of its intent to do so, and the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available thereafter not be liable to the Indemnifying Party and/or its authorized representative(s) the information relied upon Indemnitee for legal or other expenses subsequently incurred by the Indemnified Party to substantiate Indemnitee in connection with the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension defense thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, however, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party such Indemnitee shall have the right at its own expense to participate employ counsel to represent such Indemnitee if, in orsuch Indemnitee's reasonable judgment, if it so elects, to assume control a conflict of the defense interest between such Indemnitee and such Indemnifying Party exists in respect of such claimclaim that would make representation of both such parties by one counsel inappropriate, and in such event the Indemnified Party fees and expenses of such separate counsel shall cooperate fully with be paid by the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claimsuch defense, the Indemnified Party Indemnitee shall have the right to participate in the defense thereof and to employ counsel, subject to the proviso of such claim the preceding sentence, 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 (d) If a claim, whether between other than during the parties or by a third party, requires immediate action, period prior to the parties will make all reasonable efforts to reach a decision with respect thereto time the Indemnitee shall have given notice of the Third-Party Claim as expeditiously as possible.
(e) provided above). If the Indemnifying Party does not elect so elects to assume control or otherwise participate in the defense of any thirdThird-party claimParty Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof, including by providing or causing to be provided, Records and witnesses as soon as reasonably practicable after receiving any request therefor from or on behalf of the Indemnifying Party. If an Indemnifying Party elects to assume the defense of a Third-Party Claim as provided above, 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; 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 an Indemnifying Party elects to assume the defense of a Third-Party Claim as provided above, the Indemnitee will agree to any settlement, compromise or discharge of a Third-Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third-Party Claim and releases the Indemnitee completely in connection with such Third-Party Claim; provided, however, that, notwithstanding the foregoing, the Indemnitee shall not be required hereunder to agree to any such settlement, compromise or discharge involving the stipulation of facts or the adjudication of any question that the Indemnitee determines in its discretion would have an adverse effect on the Indemnitee in any other proceeding or otherwise would affect adversely the Indemnitee. If an Indemnifying Party elects not to assume the defense of a Third-Party Claim, or fails to notify an Indemnitee of its election to do so as provided herein, such Indemnitee may compromise, settle or defend such Third-Party Claim, and such Indemnitee may recover the Losses in connection with such compromise, settlement or defense from the Indemnifying Party. 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 bound entitled to assume the defense of the portion relating to money damages.
(b) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the results obtained place of such Indemnitee as to any events or circumstances in good faith by the Indemnified Party with respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
(fc) The indemnification rights remedies provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties Article III shall be made cumulative and shall not preclude assertion by any Indemnitee of any other rights or the seeking of any and through the Indemnified all other remedies against any Indemnifying Party.
Appears in 2 contracts
Sources: Distribution Agreement (First National Bankshares of Florida Inc), Distribution Agreement (FNB Corp/Fl/)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming Promptly after receipt by an Indemnitee of written notice of the indemnification (assertion or the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) commencement of any claim whether between the parties or brought Action by a third party against (a “Third-Party Claim”) with respect to any matter referred to in Section 9.2 or Section 9.3, the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such applicable Indemnitee shall give written notice shall be given by the Indemnified Party thereof to the Indemnifying Party within ten (10) days after written Party, which notice shall include a description of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claimAction, the amount thereof (if known and quantifiable) and the basis for the Action, and thereafter shall keep the applicable Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claimreasonably informed with respect thereto; provided, that failure of the amount held in escrow applicable Indemnitee to secure Sellers’ indemnification give the Indemnifying Party notice as provided herein shall not relieve the Indemnifying Party of Buyer shall be paid in satisfaction of any claim payable by Sellers until its obligations hereunder except to the extent that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Indemnifying Party is entitled to indemnification hereundermaterially prejudiced thereby. Thereafter, the applicable Indemnitee shall deliver to the Indemnifying Party, promptly following the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee to the extent relating to the Third-Party Claim and reasonably necessary to the Indemnifying Party’s analysis thereof. A claim for indemnification by an Indemnitee for any matter not involving a Third-Party Claim may be asserted by notice to the Indemnifying Party. The Indemnifying Party shall have the right to control the defense and handling, and settle or compromise, of any Third-Party Claim at its own expense sole expense; provided, that the Indemnitee shall be entitled to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with Action giving rise to its claim for indemnification at the Indemnifying Party’s expense, and at its option (subject to reimbursement for reasonable actual out-of-pocket expense incurred the limitations set forth below) by appointing a counsel reasonably acceptable to the Indemnified Party as applicable Indemnitee to be the result of a request by lead counsel in connection with such defense; provided, that:
(a) the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party Indemnitee shall have the right be entitled to participate in the defense of such claim at and to employ counsel of its own expense.
choice for such purpose; provided, that the fees and expenses of such separate counsel shall be borne by the Indemnitee (d) If a claim, whether between other than any fees and expenses of such separate counsel that are incurred prior to the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If date the Indemnifying Party does effectively assumes control of such defense which, notwithstanding the foregoing, shall be borne by the Indemnifying Party, and except that the Indemnifying Party shall pay all of the fees and expenses of such separate counsel if a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnitee);
(b) the Indemnifying Party shall not elect be entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnitee) and shall pay the fees and expenses of counsel retained by the Indemnitee if (i) the claim for indemnification relates to or otherwise participate arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation; (ii) the Indemnitee reasonably believes an adverse determination with respect to the Action giving rise to such claim for indemnification would be detrimental to or injure the Indemnitee’s reputation or future business prospects of the Indemnitee; (iii) the claim seeks an injunction or equitable relief against the Indemnitee; (iv) a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnitee; (v) upon written notice from the Indemnitee to the Indemnifying Party that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim with reasonable detail of the Indemnitee’s good faith justifications for such determination; and
(c) if the Indemnifying Party shall control the defense of any third-party such claim, the Indemnifying Party shall be bound by obtain the results obtained in good faith by prior written consent of the Indemnified Party with respect Indemnitee before entering into any settlement of a claim or ceasing to defend such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Maxeon Solar Technologies, Ltd.), Asset Purchase Agreement (Complete Solaria, Inc.)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming If an Indemnitee shall receive notice or otherwise learn of the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) assertion of any claim whether between the parties or brought commencement of any proceeding (including any governmental investigation) by a third person who is not a party against to this Agreement (or any Affiliate of either party) (a "Third-Party Claim") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee shall give such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim setting forth the Indemnified Partyparticulars as to such claim or proceeding in reasonable detail; provided that the failure of any Indemnitee to give notice as provided in this SECTION 4.4(A) shall not relieve the related Indemnifying Party of its obligations under this ARTICLE IV, specifying (i) the factual basis for unless such claimIndemnifying Party is actually prejudiced by such failure to give notice, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party then only to the Indemnifying Party within ten (10) days after written notice extent of such action, suit, or proceeding shall have been given to the Indemnified Partyactual prejudice.
(b) Following An Indemnifying Party may, to the extent it wishes within 30 days of receipt of notice from the Indemnified Party of a Third-Party Claim and at its cost and expense, elect to defend or to seek to settle or compromise any Third-Party Claim; provided that the Indemnitee may participate in such settlement or defense through its chosen counsel at its sole cost and expense. After notice from an Indemnifying Party to an Indemnitee of its election to assume the defense of a Third-Party Claim, such Indemnifying Party shall not be liable to such Indemnitee under this ARTICLE IV for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by such Indemnitee in connection with the defense thereof; provided that if the defendants in any such Third-Party Claim include both the Indemnifying Party and one or more Indemnitees, and in any Indemnitee's reasonable judgment a conflict of interest between one or more of such Indemnitees and such Indemnifying Party exists in respect of such claim, such Indemnitees shall have the right to employ separate counsel to represent such Indemnitees. In that event, the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by such Indemnifying Party; provided further if and to the extent that there is a conflict of defenses or positions among the Indemnitees, the Indemnitees shall have the right to retain such number of additional separate counsel, reasonably satisfactory to the Indemnifying Party, as is reasonably necessary to avoid such conflicts, and the Indemnifying Party shall be responsible for the reasonable fees and expenses of such additional separate counsel; provided further that the Indemnitee may participate in the settlement or defense of a Third-Party Claim through counsel chosen by such Indemnitee if the fees and expenses of such counsel shall be borne by such Indemnitee. If an Indemnifying Party elects not to assume responsibility for defending a Third-Party Claim, such Indemnitee may defend or seek to compromise or settle such Third-Party Claim, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. Notwithstanding the foregoing, the Indemnifying Party shall have thirty (30) days in which to make such investigation not be liable for any settlement of the claim as the any Third-Party Claim effected without its written consent. The Indemnifying Party shall deem necessary not, except with the consent of the Indemnitee, (i) enter into any such settlement that does not include as an unconditional term thereof the giving by the person or desirablepersons asserting such Third-Party Claim to all Indemnitees an unconditional release from all Liability with respect to such Third-Party Claim, or (ii) consent to entry of any judgment. For (c) Any claim on account of a Loss that does not result from a Third-Party Claim shall be asserted by written notice given by the purposes of such investigation, the Indemnified Party agrees to make available Indemnitee to the Indemnifying Party. Such Indemnifying Party and/or its authorized representative(s) shall have a 6 9 period of 30 days after the information relied upon by the Indemnified Party receipt of such notice within which to substantiate the claimrespond thereto. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to within such notice30-day period, the such Indemnifying Party shall immediately pay be deemed to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow have refused to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect accept responsibility to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperatemake payment. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect respond within such 30-day period or rejects such claim in whole or in part, such Indemnitee shall be free to assume control pursue such remedies as may be available to such party under this Agreement or otherwise participate in under applicable law. (d) In addition to any adjustments required pursuant to SECTION 4.3, if the defense amount of any third-party claimLoss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the Indemnifying Party shall be bound amount of such reduction that has been received by the results obtained Indemnitee, less any expenses properly incurred in good faith connection therewith, shall promptly be repaid by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend Indemnitee to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Indemnifying Party.
Appears in 2 contracts
Sources: Distribution Agreement (Landair Corp), Distribution Agreement (Landair Corp)
Procedures for Indemnification. The procedures for indemnification obligations and liabilities of the parties with respect to an Indemnification Claim shall be as followssubject to the following terms and conditions:
(ai) The party claiming the indemnification (the “Indemnified Party”) an Indemnification Claim shall promptly give be made by a NM Indemnitee by delivery of a written notice to the party Company Indemnitors' Representative requesting indemnification from whom the Company Indemnitors and specifying the basis on which indemnification is claimed sought and the amount of asserted Losses and, in the case of a Third Party Claim, containing (the “Indemnifying Party”by attachment or otherwise) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and other information as such Indemnitee shall have concerning such Third Party Claim;
(ii) an Indemnification Claim shall be made by a Company Indemnitee by delivery of a written notice to the NM Indemnitors' Representative requesting indemnification and specifying the basis on which indemnification is sought and the amount of asserted Losses and, in the claim. If case of a claim relates to an actionThird Party Claim, suit, containing (by attachment or proceeding filed by a third party against the Indemnified Party otherwise) such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of other information as such action, suit, or proceeding Indemnitee shall have been given to the Indemnified Partyconcerning such Third Party Claim.
(biii) Following receipt of notice from if the Indemnified Indemnification Claim involves a Third Party of a claimClaim, the Indemnifying procedures set forth in Section 8.5 hereof shall also be observed by the Indemnitee and the Indemnitors Representative;
(iv) if the Indemnification Claim involves a matter other than a Third Party Claim, the Indemnitors Representative shall have thirty (30) days to object to such Indemnification Claim by delivery of a written notice of such objection to such Indemnitee specifying in which reasonable detail the basis for such objection. Failure to make such investigation object in a timely manner shall constitute a final and binding acceptance of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon Indemnification Claim by the Indemnified Party to substantiate Indemnitors Representative on behalf of all the claim. If the Indemnified Party subject Indemnitors, and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer Indemnification Claim shall be paid in satisfaction accordance with subsection (v) hereof; and
(v) upon determination of any claim payable the amount of an Indemnification Claim, whether by Sellers until that agreement between the Indemnitors Representative and the Indemnitee or otherwise, the Indemnitors shall pay the amount of such Indemnification Claim within ten (10) days of the date such amount is exhausted (if it is)determined.
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 2 contracts
Sources: Merger Agreement (Grace Development Inc), Merger Agreement (Grace Development Inc)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The In the case of a third party claiming the indemnification claim or demand (“Third-Party Claim”) made by any Person who is not a Party of this Agreement (or an Affiliate thereof) as to which a Party (the “Indemnified PartyIndemnitor”) shall promptly give notice may be obligated to the party from whom the provide indemnification is claimed pursuant to this Agreement, such Party seeking indemnification hereunder (the “Indemnifying PartyIndemnitee”) will notify the Indemnitor in writing of any claim whether between the parties or brought by a third party against the Indemnified Party, Third-Party Claim (and specifying (i) in reasonable detail the factual basis for such claimthe Third-Party Claim and to the extent known, and (ii) the amount of the claim. If a claim relates Third-Party Claim) reasonably promptly after becoming aware of such Third-Party Claim; provided, however, that failure to an action, suit, or proceeding filed by a third party against give such notification will not affect the Indemnified Party such notice shall be given by the Indemnified Party indemnification provided hereunder except to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding extent the Indemnitor shall have been given to the Indemnified Partyactually prejudiced as a result of such failure.
(b) Following If a Third Party Claim is made against an Indemnitee, the Indemnitor will be entitled, within one hundred twenty (120) days after receipt of written notice from the Indemnified Indemnitee of the commencement or assertion of any such Third Party Claim, to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect to assume the defense of a claim, Third Party Claim:
(i) the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available Indemnitor will not be liable to the Indemnifying Party and/or its authorized representative(s) the information relied upon Indemnitee for any legal or other expenses subsequently incurred by the Indemnified Party to substantiate Indemnitee in connection with the claimdefense thereof; provided, that if under applicable standards of professional conduct a conflict of interest exists [*] Confidential treatment requested. If between the Indemnified Party Indemnitor and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount Indemnitee in respect of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party Indemnitee shall have the right at its own expense to participate employ separate counsel (which shall be reasonably satisfactory to the Indemnitor) to represent such Indemnitee with respect to the matters as to which a conflict of interest exists and in or, if it so elects, to assume control of that event the defense reasonable fees and expenses of such claimseparate counsel shall be paid by such Indemnitor; provided, further, that the Indemnitor shall only be responsible for the reasonable fees and expenses of one separate counsel (plus local counsels as required) for such Indemnitee;
(ii) the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party Indemnitee shall have the right to participate in the defense of such claim thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor;
(iii) the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof); and
(iv) all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor).
(c) If the Indemnitor does not elect to assume control of the, defense of any Third Party Claim within the 120-day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise or settle such Third Party Claim, exercising reasonable business judgment.
(d) If the Indemnitor acknowledges in writing its obligation to indemnify the Indemnitee for a claim, whether between the parties or by a third party, requires immediate actionThird-Party Claim, the parties Indemnitee will make agree to any settlement, compromise or discharge of such Third-Party Claim that the Indemnitor may recommend, exercising reasonable business judgment, that by its terms obligates the Indemnitor to pay the full amount of Third Party Liabilities (whether through settlement or otherwise) in connection with such Third-Party Claim and unconditionally and irrevocably releases the Indemnitee completely from all reasonable efforts Third Party Liabilities in connection with such Third-Party Claim; provided, however, that, without the Indemnitee’s prior written consent, the, Indemnitor shall not consent to reach any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge, that provides for injunctive or other nonmonetary relief affecting the Indemnitee. If the Indemnitor acknowledges in writing its obligation to indemnify the Indemnitee for a decision Third-Party Claim, the Indemnitee shall not (unless required by Law) admit any liability with respect thereto as expeditiously as possibleto, or settle, compromise or discharge, such Third-Party Claim without the Indemnitor’s prior written consent (which consent shall not be unreasonably withheld).
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 2 contracts
Sources: Finished Product Supply Agreement, Finished Product Supply Agreement (Aptalis Holdings Inc.)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “"Indemnified Party”") shall promptly give notice to the party from whom the indemnification is claimed (the “"Indemnifying Party”") of any claim claim, whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a the claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten five (105) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of . Buyer shall be paid in satisfaction entitled to apply any or all of the Accounts Receivable collected on behalf of Sellers to a claim as to which Buyer is entitled to indemnification hereunder. If the Indemnified Party and the Indemnifying Party do not agree within said period (or within any claim payable by Sellers until that amount is exhausted (if it isagreed-upon extension thereof), the Indemnified Party may seek appropriate legal remedy.
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, or to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 13.2 and 12.3 13.3 hereof shall extend to the partners, shareholders, directors, officers officers, members, partners, agents, employees, and Affiliates representatives of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.413.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 2 contracts
Sources: Asset Purchase Agreement (American Tower Systems Corp), Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Procedures for Indemnification. The procedures for indemnification obligations and -------------------------------- liabilities of the parties with respect to an Indemnification Claim shall be as followssubject to the following terms and conditions:
(ai) The party claiming the indemnification (the “Indemnified Party”) an Indemnification Claim shall promptly give be made by a STR Indemnitee by delivery of a written notice to the party Controlling Shareholder Indemnitor's Representative requesting indemnification from whom the Controlling Shareholder Indemnitor and specifying the basis on which indemnification is claimed sought and the amount of asserted Losses and, in the case of a Third Party Claim, containing (the “Indemnifying Party”by attachment or otherwise) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and other information as such Indemnitee shall have concerning such Third Party Claim;
(ii) an Indemnification Claim shall be made by a Controlling Shareholder Indemnitee by delivery of a written notice to the STR Indemnitors' Representative requesting indemnification and specifying the basis on which indemnification is sought and the amount of asserted Losses and, in the claim. If case of a claim relates to an actionThird Party Claim, suit, containing (by attachment or proceeding filed by a third party against the Indemnified Party otherwise) such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of other information as such action, suit, or proceeding Indemnitee shall have been given to the Indemnified Partyconcerning such Third Party Claim.
(biii) Following receipt of notice from if the Indemnified Indemnification Claim involves a Third Party of a claimClaim, the Indemnifying procedures set forth in Section 8.5 hereof shall also be observed by ----------- the Indemnitee and the Indemnitors' Representative;
(iv) if the Indemnification Claim involves a matter other than a Third Party Claim, the Indemnitors' Representative shall have thirty (30) days to object to such Indemnification Claim by delivery of a written notice of such objection to such Indemnitee specifying in which reasonable detail the basis for such objection. Failure to make such investigation object in a timely manner shall constitute a final and binding acceptance of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon Indemnification Claim by the Indemnified Party to substantiate Indemnitors' Representative on behalf of all the claim. If the Indemnified Party subject Indemnitors, and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer Indemnification Claim shall be paid in satisfaction accordance with subsection (v) hereof; and
(v) upon determination of any claim payable the amount of an Indemnification Claim, whether by Sellers until that agreement between the Indemnitors' Representative and the Indemnitee or otherwise, the Indemnitors shall pay the amount of such Indemnification Claim within ten (10) days of the date such amount is exhausted (if it is)determined.
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 2 contracts
Sources: Merger Agreement (Worldwide Petromoly Inc), Merger Agreement (Worldwide Petromoly Inc)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The Whenever a Claim shall arise for indemnification resulting from or in connection with a Claim by a third party claiming (a “Third-Party Claim”) (other than under Section 9.02(b)(iv)), the Person entitled to indemnification (the “Indemnified Party”) shall promptly give notice to notify the party Party from whom the which indemnification is claimed sought (the “Indemnifying Party”) of such Claim and, when known, the facts constituting the basis of such Claim; provided, that failure to notify the Indemnifying Party shall not relieve the Indemnifying Party of any claim whether between the parties or brought by a third party against liability it may have to the Indemnified Party, specifying except to the extent that the Indemnifying Party has been materially prejudiced by such failure. Following receipt of notice of any such Third-Party Claim, and unless (i) the factual basis for assumption of such claimdefense by the Indemnifying Party would be inappropriate due to a conflict of interest, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified such Third-Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period Claim (or any agreed upon extension thereofthe facts or allegations related to such Third-Party Claim) to the validity and amount of such claiminvolves criminal allegations or seeks equitable or injunctive relief, or if (iii) the Indemnifying Party does not respond have the resources to satisfy such noticeThird-Party Claim or (iv) such Third-Party Claim, if adversely determined, could reasonably be expected to materially adversely affect the Indemnifying Party shall immediately pay to business or reputation of the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunderor its Affiliates, the Indemnifying Party shall have the right option, at its own expense to participate in or, if it so electscost and expense, to assume control of the defense of such claimThird-Party Claim and to retain counsel (not reasonably objected to by the Indemnified Party) to defend any such claim or legal proceeding, and the Indemnifying Party shall not be liable to the Indemnified Party shall cooperate fully for any fees of other counsel or any other expenses (except as expressly provided to the contrary herein) with respect to the Indemnifying Partydefense of such Claim, subject to reimbursement for other than reasonable actual out-of-pocket expense incurred fees and expenses of counsel employed by the Indemnified Party as the result of a request by for any period during which the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of has not assumed the defense of any third-party claim, the thereof. The Indemnified Party shall have the right to participate in option of joining the defense of such claim Claim (which shall be at its own expensethe sole cost and expense of the Indemnified Party) with counsel not reasonably objected to by the Indemnifying Party and counsel for each party shall, to the extent consistent with such counsel’s professional responsibilities, cooperate with the other party and any counsel designated by that party. In effecting the settlement or compromise of, or consenting to the entry of any judgment with respect to, any such Third-Party Claim with respect to which the Indemnifying Party has assumed the defense in accordance with this Section 9.05(a), the Indemnifying Party, or the Indemnified Party, as the case may be, shall act in good faith, shall consult with the other party and shall enter into only such settlement or compromise or consent to the entry of any judgment as the other party shall consent, such consent not to be unreasonably withheld, conditioned or delayed. An Indemnifying Party shall not be liable for any settlement, compromise or judgment not made in accordance with the preceding sentence.
(db) If a claimBuyer shall promptly and diligently defend, whether between prosecute or settle the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
matters described in Section 9.02(b)(iv) (e) If the Indemnifying Party does not elect to assume control or otherwise participate in including the defense of any third-party claim, members of the Indemnifying Party shall be bound by the results obtained in good faith by the Seller Indemnified Party Group that are defendants or respondents with respect to such claim.
(f) The indemnification rights provided matters). If Buyer’s counsel shall have advised Buyer in Sections 12.2 and 12.3 hereof writing, in which case Buyer shall extend deliver a copy to the shareholdersIndemnified Party, directorsor if the Indemnified Party reasonably believes, officers that there is a conflict of interest that could make it inappropriate under applicable standards of professional conduct to have common counsel, the Indemnified Party may retain its own counsel with respect to such defense and Affiliates Buyer shall pay the reasonable attorneys’ fees and expenses of counsel for such Indemnified Party. Buyer shall obtain the prior written consent of the Indemnified Party, although for which consent shall not be unreasonably withheld, delayed or conditioned, before entering into or making (or allowing the purpose Companies to enter into or make) any settlement or compromise of the procedures set forth matters described in this Section 12.4, any indemnification claims by 9.02(b)(iv) if (i) such parties shall be made by and through settlement or compromise does not include a full release of the Indemnified Party, (ii) such settlement or compromise includes any non-monetary remedy binding on the Indemnified Party or (iii) the Indemnified Party reasonably believes that Buyer will not have the ability to satisfy fully its obligations pursuant to Section 9.02(b)(iv) at the time of such settlement or compromise.
(c) After the Closing Date, Seller and Buyer shall grant each other (or their respective designees), and Buyer shall cause the Companies to grant to Seller (or its designees), access at all reasonable times to all of the information, books and records relating to the Companies in its possession, and shall afford such party the right (at such party’s expense) to take extracts therefrom and to make copies thereof, to the extent reasonably necessary to implement the provisions of, or to investigate or defend any Third-Party Claims; provided that no such party shall be entitled to make available any information, books or records, the disclosure of which would cause a waiver of any applicable privilege or breach of an obligation of confidentiality to a third-party and either party may make access to such information, books and records conditioned upon execution and delivery of a confidentiality agreement reasonably satisfactory to the party requesting disclosure. Further, after the Closing, Buyer shall cause the Companies to grant to Seller (or its designees) the access and right to take extracts and make copies described in the preceding sentence for such other purposes as may be reasonably requested by Seller.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (US Power Generating CO), Purchase and Sale Agreement (Reliant Energy Inc)
Procedures for Indemnification. The procedures for indemnification (i) If an Indemnitee shall be as follows:
(a) The party claiming receive notice or otherwise learn of the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) assertion of any claim whether between the parties or brought commencement of any proceeding (including any governmental investigation) by a third person who is not a party against to this Agreement (or any Affiliate of either party) (a "Third-Party Claim") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee shall give such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim setting forth the Indemnified particulars as to such claim or proceeding in reasonable detail; PROVIDED that the failure of any Indemnitee to give notice as provided in this Section 4.4(a) shall not relieve the related Indemnifying Party of its obligations under this Article IV, unless such Indemnifying Party is actually prejudiced by such failure to give notice and then only to the extent of such actual prejudice.
(ii) An Indemnifying Party may, to the extent it wishes within thirty days of receipt of notice of a Third Party claim and at its cost and expense, elect to defend or to seek to settle or compromise any Third-Party Claim; PROVIDED that the Indemnitee may participate in such settlement or defense through its chosen counsel at its sole cost and expense. After notice from an Indemnifying Party to an Indemnitee of its election to assume the defense of a Third-Party Claim, such Indemnifying Party shall not be liable to such Indemnitee under this Article IV for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by such Indemnitee in connection with the defense thereof; PROVIDED that if the defendants in any such Third-Party Claim include both the Indemnifying Party and one or more Indemnitees and in any Indemnitee's reasonable judgment a conflict of interest between one or more of such Indemnitees and such Indemnifying Party exists in respect of such claim, such Indemnitees shall have the right to employ separate counsel to represent such Indemnitees and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by such Indemnifying Party; PROVIDED FURTHER if and to the extent that there is a conflict of defenses or positions among the Indemnitees, the Indemnitees shall have the right to retain such number of additional separate counsel, reasonably satisfactory to the Indemnifying Party, specifying as is reasonably necessary to avoid such conflicts, and the Indemnifying Party shall be responsible for the reasonable fees and expenses of such additional separate counsel; PROVIDED FURTHER that the Indemnitee may participate in the settlement or defense of a Third-Party Claim through counsel chosen by such Indemnitee if the fees and expenses of such counsel shall be borne by such Indemnitee. If an Indemnifying Party elects not to assume responsibility for defending a Third-Party Claim, such Indemnitee may defend or seek to compromise or settle such Third-Party Claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. Notwithstanding the foregoing, the Indemnifying Party shall not be liable for any settlement of any Third-Party Claim effected without its written consent. The Indemnifying Party shall not, except with the consent of the Indemnitee, (i) enter into any such settlement that does not include as an unconditional term thereof the factual basis for giving by the person or persons asserting such claimThird-Party Claim to all Indemnitees an unconditional release from all liability with respect to such Third-Party Claim, and or (ii) the amount consent to entry of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Partyany judgment.
(b) Following receipt of notice from the Indemnified Party Any claim on account of a claim, Loss that does not result from a Third-Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party. Such Indemnifying Party shall have a period of thirty (30) days in after the receipt of such notice within which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claimrespond thereto. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to within such noticethirty-day period, the such Indemnifying Party shall immediately pay be deemed to the Indemnified have refused to accept responsibility to make payment. If such Indemnifying Party the full amount of the claim; provideddoes not respond within such thirty-day period or rejects such claim in whole or in part, that the amount held in escrow to secure Sellers’ indemnification of Buyer such Indemnitee shall be paid free to pursue such remedies as may be available to such party under this Agreement or under applicable law (except as provided in satisfaction of any claim payable by Sellers until that amount is exhausted (if it isthe ADR Agreement).
(c) With respect In addition to any claim adjustments required pursuant to Section 4.3, if the amount of any Loss shall, at any time subsequent to the payment required by a third party as to which the Indemnified Party is entitled to indemnification hereunderthis Agreement, be reduced by recovery, settlement or otherwise, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense amount of such claimreduction that has been received by the Indemnitee, and less any expenses properly incurred in connection therewith, shall promptly be repaid by the Indemnified Party shall cooperate fully with Indemnitee to the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expense.
(d) If In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall have all rights of subrogation and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim or against any other person. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If Notwithstanding anything to the Indemnifying Party does not elect to assume control contrary herein or otherwise participate in the defense of any third-party claimOther Agreements, the Indemnifying Party foregoing indemnification provisions and procedures shall be bound by apply to any other indemnification agreements herein or in the results obtained in good faith by the Indemnified Party with respect to such claimOther Agreements.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 2 contracts
Sources: Distribution Agreement (Consolidated Freightways Corp), Distribution Agreement (Consolidated Freightways Corp)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the Any Person making a claim for indemnification under Section 9.1, Section 9.2 or Section 9.3 (the an “Indemnified Party”) shall promptly give notice to notify the party from against whom the indemnification is claimed sought (the an “Indemnifying Party”) of the claim in writing promptly after receiving notice of any action, lawsuit, proceeding, investigation, demand or other claim whether between against the parties or brought Indemnified Party by a third party against (a “Third Party Claim”), describing the Indemnified PartyThird Party Claim, specifying (i) the factual basis for such claim, and (ii) the amount thereof (if known and quantifiable) and the basis thereof in reasonable detail; provided, that, the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the claim. If a claim relates extent that (and only to an action, suit, or proceeding filed by a third party against the extent that) such failure shall have caused the indemnifiable Losses to be greater than such Losses would have been had the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written prompt notice hereunder. Notwithstanding anything to the contrary set forth herein, to the extent a claim for indemnification in respect of such a single action, suitlawsuit, proceeding, investigation or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the demand or other claim is being sought by both a Company Indemnified Party under Section 9.2(g) and a Seller Indemnified Party under Section 9.3(c), for purposes of a claimthis Section 9.6, the sole Indemnifying Party shall have thirty (30) days in which be deemed to make such investigation of be the claim as the Company. Any Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim Third Party Claim at such Indemnifying Party’s expense, and at its own option shall be entitled to assume the defense thereof by appointing a reputable counsel reasonably acceptable to the Indemnified Party to be the lead counsel in connection with such defense; provided that the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ counsel of its choice for such purpose (provided that the fees and expenses of such separate counsel shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this ARTICLE IX). Notwithstanding the foregoing, if the Indemnified Party shall have determined in good faith and upon advice of counsel that (a) an actual or likely conflict of interest makes representation of the Indemnifying Party and the Indemnified Party by the same counsel inappropriate or (b) the defendants in, or targets of, any such action or proceeding include both the Indemnified Party and an Indemnifying Party, and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it or to other Indemnified Parties which are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to direct the defense of such action or proceeding on behalf of the Indemnified Party), then, in each case, the Indemnified Party may, upon notice to the Indemnifying Party, engage separate counsel, and the reasonable fees and expenses of such separate counsel shall be borne by the Indemnifying Party to the extent the Third Party Claim is indemnifiable hereunder (but only to the extent such separate counsel agrees to comply with any written guidelines established by the Indemnifying Party that are applicable to substantially all outside counsel retained by such Indemnifying Party, which guidelines shall be provided to the Indemnified Party promptly upon the Indemnifying Party’s receipt of notice that the Indemnified Party intends to engage separate counsel due to an actual or likely conflict of interest). Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of the Third Party Claim, unless the Indemnifying Party consents in writing to such payment or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such Liability. Notwithstanding anything to the contrary herein, the Indemnifying Party shall not compromise or settle, or admit any Liability with respect to, any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), unless the relief consists solely of (i) money damages (all of which the Indemnifying Party shall pay except to the extent otherwise provided in Section 9.2 (as it relates to Section 9.2(g)) and Section 9.3) and (ii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto. In all cases with respect to Third Party Claims, the parties shall provide reasonable cooperation to each other in defense of such Third Party Claims, including by making employees, information and documentation reasonably available (including for purposes of fact finding, consultation, interviews, depositions and, if required, as witnesses) and providing such information, testimony and access to their books and records, during normal business hours and upon reasonable notice, in each case as shall be reasonably necessary in connection with the contest or defense. If the Indemnifying Party shall not reasonably promptly assume the defense of any such Third Party Claim, or fails to prosecute or withdraws from the defense of any such Third Party Claim, the Indemnified Party may defend against such matter, at the Indemnifying Party’s expense, in a manner consistent with the above provisions regarding conduct of the defense by the Indemnified Party; provided, that, the Indemnified Party may not settle any such matter without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).
(b) The Indemnified Party shall notify the Indemnifying Party with respect to a Covered Claim even though the amount thereof plus the amount of other Covered Claims previously notified by the Indemnified Party aggregate is less than the Deductible or the Special Product Deductible, as applicable.
(c) In the event that any party or any of its Affiliates alleges that it is entitled to indemnification hereunder, and that its claim is covered under more than one provision of this ARTICLE IX, such party or Affiliates shall be entitled to elect the provision or provisions under which it may bring a claim for indemnification.
(d) If A claim for indemnification for any matter not involving a claim, whether between the parties or Third Party Claim may be asserted by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend notice to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any party from whom indemnification claims by such parties shall be made by and through the Indemnified Partyis sought.
Appears in 2 contracts
Sources: Investment Agreement (Unistrut International Holdings, LLC), Investment Agreement (Tyco International LTD)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification that may be entitled to indemnity hereunder (the “Indemnified Party”) shall promptly give prompt notice to the any party from whom the indemnification is claimed obligated to give indemnity hereunder (the “Indemnifying Party”) of the assertion of any claim whether between claim, or the parties commencement of any suit, action or brought proceeding in respect of which indemnity may be sought hereunder. Any failure on the part of any Indemnified Party to give the notice described in this Section 11.6(a) shall relieve the Indemnifying Party of its obligations under this Article XI only to the extent that such Indemnifying Party has been prejudiced by a third party against the lack of timely and adequate notice (except that the Indemnifying Party shall not be liable for any expenses incurred by the Indemnified Party during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly (and in any event within ten (10) days thereof) after the Indemnified Party’s receipt thereof, specifying copies of all notices and documents (including court papers) received by the Indemnified Party relating to such claim, action, suit or proceeding.
(b) The Indemnifying Party shall have the right but not the obligation to assume the defense or settlement of any third-party claim, suit, action or proceeding in respect of which indemnity may be sought hereunder, provided that (i) the factual basis for Indemnified Party shall at all times have the right, at its or his option and expense, to participate fully therein, provided that such claimdefense shall remain under the control of the Indemnifying Party, and and, (ii) if the amount of Indemnifying Party does not proceed diligently to defend the third-party claim. If a claim relates to an action, suit, action or proceeding filed by a third within twenty (20) days after receipt of notice of such third-party against claim, suit, action or proceeding, the Indemnified Party shall have the right, but not the obligation, to undertake the defense at his expense of any such notice third-party claim, suit, action or proceeding.
(c) The Indemnifying Party shall not be given by required to indemnify the Indemnified Party with respect to any amounts paid in settlement of any third-party suit, action, proceeding or investigation entered into without the written consent of the Indemnifying Party, provided that if the Indemnifying Party gives ten (10) days’ prior written notice to the Indemnified Party of a settlement offer which the Indemnifying Party desires to accept and to pay all Losses with respect thereto (“Settlement Notice”) and the Indemnified Party fails or refuses to consent to such settlement within ten (10) days after written notice delivery of such action, suit, or proceeding shall have been given the Settlement Notice to the Indemnified Party.
(b) Following receipt , and such settlement otherwise complies with the provisions of notice from the Indemnified Party of a claim, this Section 11.6 the Indemnifying Party shall have thirty (30) days not be liable for Losses arising from such third-party suit, action, proceeding or investigation in which to make such investigation excess of the claim as amount proposed in such settlement offer. Notwithstanding the foregoing, no Indemnifying Party shall deem necessary consent to the entry of any judgment or desirable. For enter into any settlement without the purposes consent of the Indemnified Party, if such investigation, judgment or settlement imposes any obligation or liability upon the Indemnified Party agrees to make available other than the execution, delivery or approval thereof and customary releases of claims with respect to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension subject matter thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expense.
(d) If a claimThe Parties shall cooperate in defending any such third-party suit, whether between action, proceeding or investigation, and the parties defending Party shall have reasonable access to the books and records, and personnel in the possession or control of the other Party that are pertinent to the defense. The Indemnified Party may join the Indemnifying Party in any suit, action, claim or proceeding brought by a third party, requires immediate actionas to which any right of indemnity created by this Agreement would or might apply, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of enforcing any right of the procedures set forth in indemnity granted to such Indemnified Party pursuant to this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified PartyAgreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Nuevo Energy Co), Stock Purchase Agreement (Nuevo Energy Co)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming ment (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 (the “Indemnified Party”) shall promptly give notice provided hereunder except to the party from whom extent the indemnification is claimed 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 any claim whether between all notices and documents (including court papers) received by the parties or brought by a third party against Indemnitee relating to the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claimThird Party Claim. If a claim relates to Third Party Claim is made against an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claimIndemnitee, the Indemnifying Party shall have thirty (30) days be entitled to participate in which the defense thereof and, if it so chooses and acknowledges in writing its obligation to make indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided that such investigation of counsel is not reasonably objected to by the claim as Indemnitee. Should the Indemnifying Party shall deem necessary or desirable. For so elect to assume the purposes defense of such investigation, the Indemnified a Third Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such noticeClaim, the Indemnifying Party shall immediately pay not be liable to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement Indemnitee for reasonable actual out-of-pocket expense legal or other expenses subsequently incurred by the Indemnified Party as Indemnitee in connection with the result of a request by the Indemnifying Party to so cooperatedefense thereof. If the Indemnifying Party elects to assume control of the defense of any third-party claimassumes such defense, the Indemnified Party Indemnitee shall have the right to participate in the defense of such claim 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 (d) If a claim, whether between other than during the parties or by a third party, requires immediate action, period prior to the parties will make all reasonable efforts to reach a decision with respect thereto time the Indemnitee shall have given notice of the Third Party Claim as expeditiously as possible.
(e) provided above). If the Indemnifying Party does not elect so elects to assume control or otherwise participate in the defense of any third-party claimThird 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 24 24 Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent; 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 and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee; provided, however, that the Indemnitee may refuse to agree to any such 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 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 bound by entitled to assume the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates defense of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Partyportion relating to money damages.
Appears in 2 contracts
Sources: Distribution Agreement (Itt Industries Inc), Distribution Agreement (Itt Corp /Nv/)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the As used herein, an “Indemnified Party”) shall promptly give notice ” means a party seeking indemnification pursuant to ARTICLE 10, and the party from whom the indemnification is claimed (the term “Indemnifying Party” means the party who is obligated to provide indemnification under ARTICLE 10. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a “Third-Party Claim”) of which it has knowledge, for which such Indemnifying Party is entitled to indemnification under this ARTICLE 10. In the case of a Third-Party Claim, the Indemnifying Party will have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third-Party Claim at its own expense. In such case the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party’s records and personnel relating to any such Third-Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third-Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third-Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim whether between or demand arising from such Third-Party Claim, unless the parties Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld) or brought unless a final judgment from which no appeal may be taken by a third party or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third-Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claimwhich consent will not be unreasonably withheld. If a claim relates the Indemnifying Party fails to an actiondefend or fails to prosecute or withdraws from such defense, suit, or proceeding filed by a third party against then the Indemnified Party such notice shall be given by will have the Indemnified Party right to undertake the defense or settlement thereof, at the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim’s expense. If the Indemnified Party assumes the defense of any such Third-Party Claim pursuant to this ARTICLE 10 and proposes to settle such Third-Party Claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall will have the right to participate in the settlement or assume or reassume the defense of such claim at its own expenseThird-Party Claim.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Mobilepro Corp), Asset Purchase Agreement (Mobilepro Corp)
Procedures for Indemnification. The procedures Promptly after receipt by an indemnified party under Section 12.2 or Section 12.3 of notice of the commencement of any third party action or other event for which indemnification shall may be as follows:
(a) The available under Section 12.2 or 12.3, such indemnified party claiming the indemnification (the “Indemnified Party”) shall promptly shall, if a claim in respect thereof is to be made against an indemnifying party under such Section, give notice to the indemnifying party from whom of the indemnification is claimed (commencement thereof, but the “Indemnifying Party”) failure so to notify that indemnifying party shall not relieve it of any claim whether between liability that it may have to any indemnified party, except to the extent the indemnifying party demonstrates that the defense of such action is prejudiced thereby. In case any such action shall be brought against an indemnified party and it shall give notice to the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall elect, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such Section for any fees of other counsel or any other expenses, in each case incurred by such indemnified party in connection with the indemnified party's own defense thereof, other than reasonable costs of investigation and costs and expenses of legal counsel if the indemnified party and the indemnifying party are both parties to the action and the indemnified party has been advised by counsel that there may be one or brought more defenses available to it and not available to the indemnifying party which defenses result in a conflict of interest. If an indemnifying party assumes the defense of such an action, (a) such assumption will conclusively establish for purposes of this Agreement that the claims made are within the scope of and subject to indemnification; (b) no compromise or settlement thereof may be effected by a third the indemnifying party against without the Indemnified Party, specifying indemnified party's consent unless (i) there is no finding or admission or any violation of law or any violation of the factual basis for such claimrights of any Person and no effect on any other claims that may be made against the indemnified party, and (ii) the amount of sole relief provided is monetary damages that are paid in full by the claimindemnifying party; and (c) the indemnified party shall have no liability with respect to any compromise or settlement thereof effected without its consent. If a claim relates notice is given to an actionindemnifying party of any claim for indemnification hereunder and the indemnifying party does not, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written the indemnified party's notice of such actionis given, suit, or proceeding shall have been given give notice to the Indemnified Party.
(b) Following receipt indemnified party of notice from its election to assume the Indemnified Party of a claimdefense thereof, the Indemnifying Party shall have thirty (30) days indemnifying party will be bound by any determination made in which to make such investigation of the claim as the Indemnifying Party shall deem necessary connection therewith or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon any compromise or settlement effected by the Indemnified Party to substantiate indemnified party. Notwithstanding the claim. If the Indemnified Party and the Indemnifying Party agree at foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a third-party claim may adversely affect it or prior to the expiration its Affiliates other than as a result of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or monetary damages for which if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall would be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunderunder this Agreement, the Indemnifying Party shall have indemnified party may, by notice to the indemnifying party, assume the exclusive right at its own expense to participate in ordefend, if it so elects, to assume control of the defense of compromise or settle such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, . Both the Indemnified Party indemnified party and the indemnifying party shall have keep the right to participate in other fully informed of the defense of such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense status of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claimclaim for which indemnification has been sought at all stages thereof.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Health & Nutrition Systems International Inc), Asset Purchase Agreement (Tisi Christopher)
Procedures for Indemnification. The procedures (1) If a Buyer Indemnified Party or Seller Indemnified Party receives notice or otherwise obtains knowledge of any matter (and with respect to any claim under Section 5.15(b)(1)(x), any third party claim), for which such Buyer Indemnified Party or Seller Indemnified Party is reasonably likely to be entitled to indemnification shall and to be as follows:
held harmless under this Section 5.15 (a) The party claiming the indemnification (the a “Indemnified PartyClaim”) shall promptly give notice to based on the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the Indemnified Partyinformation available, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against then the Indemnified Party shall promptly (and within twenty (20) days) deliver to the Indemnifying Party a written notice describing with reasonable specificity the nature and basis, and estimated amount, of such Claim and, if available, such notice must be accompanied by a copy of any written notice to such Indemnified Party asserting the Claim. The Indemnified Party shall be given deliver to Indemnifying Party copies of all other notices and documents received by the Indemnified Party relating to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given Claim. Subject to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it isSection 5.15(d)(2).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right right, at its own expense to participate in or, if it so electsoption, to assume control the defense of any such matter with its own counsel. Prior to the time the Indemnified Party is notified by Parent and Seller as to whether the Indemnifying Party will assume the defense of such claimClaim, and the Indemnified Party shall cooperate fully take all actions reasonably necessary to timely preserve the collective rights of the parties with the Indemnifying Partyrespect to such Claim, subject including responding timely to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the legal process.
(2) The Indemnifying Party shall have the right to so cooperateelect to assume the defense of any Claim. If the Indemnifying Party elects to assume control of the defense of any third-party claimsuch Claim, then, notwithstanding anything to the Indemnified Party shall have the right to participate contrary contained in the defense of such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claimthis Agreement, the Indemnifying Party shall not be bound by the results obtained in good faith by required to pay or otherwise indemnify the Indemnified Party for any attorneys’ fees or other expenses incurred on behalf of the Indemnified Party in connection with defending such matter following the Indemnifying Party’s election to assume the defense of such matter, unless (x) the Indemnified Party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnified Party or other Indemnified Parties that are not available to the Indemnifying Party, or (y) the Indemnified Party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claim.
(f) Claim, the Indemnified Party and the Indemnifying Party may have different, conflicting or adverse legal positions or interests, in which case, the Indemnifying Party shall not be permitted to assume the defense of such Claim. The indemnification rights provided in Sections 12.2 and 12.3 hereof Indemnified Party shall extend make available to the shareholdersIndemnifying Party all books, directorsrecords and other documents and materials that are under the direct or indirect control of the Indemnified Party or any of its Representatives and that the Indemnifying Party considers necessary or desirable in connection with such Claim, officers and Affiliates cooperate in all reasonable ways with, and make its employees and advisors available or otherwise render reasonable assistance to, the Indemnifying Party and its Representatives. The Indemnifying Party shall not, without the written consent of the Indemnified Party, although which shall not be unreasonably withheld, conditioned or delayed, settle or compromise any pending or threatened Legal Proceeding in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is an actual or potential party to such Legal Proceeding) or consent to the entry of any judgment which does not, to the extent that the Indemnified Party may have any liability with respect to such Legal Proceeding or related Claim), include as an unconditional term thereof a written release of the Indemnified Party from all liability in respect of such Legal Proceeding and Claim. If the Indemnifying Party elects not to assume (or is not permitted to assume in accordance with this paragraph) the defense of any such Claim, then the Indemnified Party shall control the defense of such Claim with the assistance of counsel reasonably satisfactory to the Indemnifying Party (it being understood and agreed that only the reasonable, documented, out of pocket fees and expenses of one counsel to all applicable Indemnified Parties, and if reasonably necessary, one local counsel in any relevant jurisdiction, shall be reimbursed by and deemed Losses for all purposes hereunder); provided, that the Indemnified Party shall not settle or compromise such matter, or admit any liability with respect to such matter, without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary in Section 5.15(b)(1)(y), the Parties shall work together in good faith to expeditiously resolve any Claim; provided that this shall not be construed to require any Indemnified Party to pay any monies or agree to any release that does not provide for the purpose release of the procedures set forth such Indemnified Party from all liability in this Section 12.4, respect of any indemnification claims by such parties shall be made by and through the Indemnified PartyClaim.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Hospitality Properties Trust), Equity Purchase Agreement (Spirit MTA REIT)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification Third Party Claims (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) other than in respect of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claimShared Liabilities). If a claim relates or demand is made against an Indemnitee by any Person who is not a party to an actionthis Agreement (a "Third Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement, suitsuch Indemnitee shall notify the Indemnifying Party in writing, or proceeding filed 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 third party against result of such failure (except that the Indemnified Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice notice). Thereafter, the Indemnitee shall be given by the Indemnified Party deliver to the Indemnifying Party Party, promptly (and in any event within ten 15 business days) after the Indemnitee's receipt thereof, copies of all notices and documents (10including court papers) days after written notice of such action, suit, or proceeding shall have been given received by the Indemnitee relating to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Third Party of Claim. If a claimThird Party Claim is made against an Indemnitee, the Indemnifying Party shall have thirty (30) days be entitled to participate in which the defense thereof and, if it so chooses and acknowledges in writing its obligation to make indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided that such investigation of counsel is not reasonably objected to by the claim as Indemnitee. Should the Indemnifying Party shall deem necessary or desirable. For so elect to assume the purposes defense of such investigation, the Indemnified a Third Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such noticeClaim, the Indemnifying Party shall immediately pay not be liable to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement Indemnitee for reasonable actual out-of-pocket expense legal or 50 other expenses subsequently incurred by the Indemnified Party as Indemnitee in connection with the result of a request by the Indemnifying Party to so cooperatedefense thereof. If the Indemnifying Party elects to assume control of the defense of any third-party claimassumes such defense, the Indemnified Party Indemnitee shall have the right to participate in the defense of such claim 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 (d) If a claim, whether between other than during the parties or by a third party, requires immediate action, period prior to the parties will make all reasonable efforts to reach a decision with respect thereto time the Indemnitee shall have given notice of the Third Party Claim as expeditiously as possible.
(e) provided above). If the Indemnifying Party does not elect so elects to assume control or otherwise participate in the defense of any third-party claimThird Party Claim, all 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 shall the Indemnitee admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent; 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 shall agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee; provided, however, that the Indemnitee may refuse to agree to any such 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 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 51 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 bound by entitled to assume the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates defense of the Indemnified Partyportion relating to money damages. This Section 9.04(a) shall govern all claims under this Article IX for indemnification against Third Party Claims except Third Party Claims in respect of Shared Liabilities, although for the purpose of the procedures set forth in this as to which Section 12.4, any indemnification claims by such parties 9.04(b) shall be made by and through the Indemnified Partygovern.
Appears in 2 contracts
Sources: Master Intercompany Agreement (Hartford Life Inc), Master Intercompany Agreement (Hartford Life Inc)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claimTHIRD PARTY CLAIMS. If a claim relates or demand is made against a Media Information Indemnitee or a New Ceridian Indemnitee (each, an "Indemnitee") by any person who is not a party to an actionthis Agreement (a "Third Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement, suitsuch Indemnitee shall notify the party which is or may be required pursuant to Section 3.1 or Section 3.2 hereof to make such indemnification (the "Indemnifying Party") in writing, or proceeding filed 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 third party against result of such failure (except that the Indemnified Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice notice). Thereafter, the Indemnitee shall be given by the Indemnified Party deliver to the Indemnifying Party Party, promptly (and in any event within ten five business days) after the Indemnitee's receipt thereof, copies of all notices and documents (10including court papers) days after written notice of such action, suit, or proceeding shall have been given received by the Indemnitee relating to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Third Party of Claim. If a claimThird Party Claim is made against an Indemnitee, the Indemnifying Party shall have thirty be entitled to participate in the defense thereof and, if 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 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, within 30 days (30) days in which to make such investigation or sooner if the nature of the claim as Third Party Claim so requires), notify the Indemnitee of its intent to do so, and the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available thereafter not be liable to the Indemnifying Party and/or its authorized representative(s) the information relied upon Indemnitee for legal or other expenses subsequently incurred by the Indemnified Party to substantiate Indemnitee in connection with the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension defense thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party such Indemnitee shall have the right at its own expense to participate employ counsel to represent such Indemnitee if, in orsuch Indemnitee's reasonable judgment, if it so elects, to assume control a conflict of the defense interest between such Indemnitee and such Indemnifying Party exists in respect of such claimclaim which would make representation of both such parties by one counsel inappropriate, and in such event the Indemnified Party fees and expenses of such separate counsel shall cooperate fully with the be paid by such Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claimassumes such defense, the Indemnified Party Indemnitee shall have the right to participate in the defense thereof and to employ counsel, subject to the proviso of such claim the preceding sentence, at its own expense.
, separate from the counsel employed by the Indemnifying Party, it being understood, subject to the proviso of the preceding sentence, 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 (d) If a claim, whether between other than during the parties or by a third party, requires immediate action, period prior to the parties will make all reasonable efforts to reach a decision with respect thereto time the Indemnitee shall have given notice of the Third Party Claim as expeditiously as possible.
(e) provided above). If the Indemnifying Party does not elect so elects to assume control or otherwise participate in the defense of any third-party claimThird Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof, including by providing or causing to be provided, Records and witnesses as soon as reasonably practicable after receiving any request therefor from or on behalf of the Indemnifying Party. If the Indemnifying Party acknowledges in writing responsibility 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; 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 and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee; provided, however, that the Indemnitee may refuse to agree to any such 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 settlement, compromise or discharge. If an Indemnifying Party elects not to assume the defense of a Third Party Claim, or fails to notify an Indemnitee of its election to do so as provided herein, such Indemnitee may compromise, settle or defend such Third Party Claim. 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 bound by entitled to assume the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates defense of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Partyportion relating to money damages.
Appears in 2 contracts
Sources: Distribution Agreement (New Ceridian Corp), Distribution Agreement (New Ceridian Corp)
Procedures for Indemnification. The procedures Whenever a claim shall arise for indemnification under Section 12.1 above, with the exception of claims for litigation expenses in respect of a litigation as to which a notice of claim, as provided below in this Section 12.2, has previously been given, which expenses shall be as follows:
(a) The funded on an ongoing basis, the party claiming the entitled to indemnification (the “Indemnified Party”) shall promptly give notice to notify the party from whom the indemnification is claimed sought (the “Indemnifying Party”) of any such claim whether between and, when known, the parties or brought by a third party against facts constituting the Indemnified Party, specifying (i) the factual basis for such claim; provided, and (ii) however, that in the amount event of the claim. If a any claim relates to an action, suit, for indemnification hereunder resulting from or proceeding filed in connection with any claim or Legal Proceeding by a third party against party, the Indemnified Party shall give such notice shall be given by the Indemnified Party thereof to the Indemnifying Party within not later than ten (10) business days after written notice of such action, suit, or proceeding shall have been given prior to the Indemnified Party.
time any response to the asserted claim is required, if possible, and in any event within five (b5) Following business days following receipt of notice thereof. Notwithstanding anything in the preceding sentence to the contrary, the failure of any Indemnified Party to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability for indemnification it may have if and to the extent that the Indemnifying Party shall not have been prejudiced by such omission. In the event of any such claim for indemnification resulting from or in connection with a claim or Legal Proceeding by a third party, the Indemnifying Party may, at its sole cost and expense, assume the defense thereof; provided, however, that the Indemnifying Party shall first have agreed in writing that it does not and will not contest its responsibility for indemnifying the Indemnified Party in respect of Losses attributable to such claim or Legal Proceeding; and, provided further, that Seller shall not be entitled to assume the defense of any claim or Legal Proceeding against Buyer for Taxes with respect to a claimperiod ending after the Closing Date. If an Indemnifying Party assumes the defense of any such claim or Legal Proceeding, the Indemnifying Party shall have thirty (30) days be entitled to select counsel and take all steps necessary in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension defense thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, however, that the amount held in escrow to secure Sellers’ indemnification of Buyer no settlement shall be paid in satisfaction made without the prior written consent of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunderParty, the Indemnifying Party which consent shall have the right at its own expense to participate in or, not be unreasonably withheld (and if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject withhold its consent to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request any monetary settlement proposed by the Indemnifying Party and which the other party to so cooperate. If the Indemnifying Party elects action has indicated it is prepared to assume control of the defense of any third-party claimaccept, the Indemnified Party shall in no event be deemed for purposes of this Agreement, to have suffered Losses in connection with such claim or proceeding in excess of the right to participate in the defense proposed amount of such claim settlement); provided, further, that the Indemnified Party may, at its own expense.
(d) If a claim, whether between participate in any such proceeding with the parties counsel of its choice without any right of control thereof. So long as the Indemnifying Party is in good faith defending such claim or by a third party, requires immediate actionLegal Proceeding, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) Indemnified Party shall not compromise or settle such claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claimsuch claim or Legal Proceeding in accordance with the terms hereof, the Indemnified Party may defend (and, in the case of any claim or Legal Proceeding against Buyer for Taxes with respect to a period ending after the Closing Date, shall defend) against such claim or Legal Proceeding in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation (after giving prior written notice of the same to the Indemnifying Party and obtaining the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld) on such terms as the Indemnified Party may deem appropriate, and the Indemnifying Party will promptly indemnify the Indemnified Party in accordance with the provisions of this Section 12.2; provided, however, that if the Indemnified Party does not obtain the prior written consent of the Indemnifying Party to any such settlement, and such written consent is not unreasonably withheld by the Indemnifying Party, the Indemnified Party shall not be entitled to indemnification hereunder from such Indemnifying Party with respect to the claim settled. Notwithstanding anything in this Section 12.2 to the contrary, if, in any claim or Legal Proceeding with respect to which the Indemnified Party has given the notice required under this Section 12.2, (i) the Indemnifying Party shall not have promptly employed counsel reasonably satisfactory to the Indemnified Party or (ii) such Indemnified Party shall have reasonably concluded, based upon the opinion of its outside legal counsel, that there may be bound one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party, then in either event (x) the Indemnified Party may participate in any such proceeding with the counsel of its choice, the expense for which shall be borne by the results obtained Indemnifying Party (but in good faith no event shall the Indemnifying Party be required to pay the fees and expenses of more than one counsel employed by the Indemnified Party with respect to such claim.
claim or proceeding) and (fy) The indemnification rights provided in Sections 12.2 and 12.3 hereof the Indemnifying Party shall extend not have the right to direct the shareholders, directors, officers and Affiliates defense of any such action on behalf of the Indemnified Party, although for . All payments by the purpose of the procedures set forth in Indemnifying Party pursuant to this Section 12.4, any indemnification claims by such parties Article XII shall be made by in cash and through the Indemnified Partyin immediately available funds.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Hollywood Media Corp), Asset Purchase Agreement (Hollywood Media Corp)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to or demand is made against an action, suitIndemnitee, or proceeding filed an Indemnitee shall otherwise learn of an assertion, by any Person who is not a third party against to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the Indemnified Party "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such notice shall be given by the Indemnified Party to Indemnitee will notify the Indemnifying Party within ten (10) days in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after written notice becoming aware of such actionThird Party Claim; provided, suithowever, or proceeding that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been given to the Indemnified Partyactually prejudiced as a result of such failure.
(b) Following receipt of notice from If a Third Party Claim is made against an Indemnitee and the Indemnified Indemnifying Party of a claimunconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party shall have thirty will be entitled to assume the defense thereof (30) days in which to make such investigation at the expense of the claim as Indemnifying Party) with counsel selected by the Indemnifying Party shall deem necessary or desirableand reasonably satisfactory to the Indemnitee. For the purposes of such investigation, the Indemnified Party agrees to make available to Should the Indemnifying Party and/or its authorized representative(s) so elect to assume the information relied upon by the Indemnified defense of a Third Party to substantiate the claim. If the Indemnified Party and Claim, the Indemnifying Party agree at or prior will not be liable to the expiration Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount interest exists in respect of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party Indemnitee shall have the right at its own expense to participate in or, if it so elects, employ separate counsel (which shall be reasonably satisfactory to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject ) and one local counsel to reimbursement for represent such Indemnitee and in that event the reasonable actual out-of-pocket expense incurred fees and expenses of each such counsel shall be paid by the Indemnified Party as the result of a request by the such Indemnifying Party to so cooperateParty. If the Indemnifying Party elects to assume control of assumes the defense of any third-party claimThird Party Claim, the Indemnified Party Indemnitee shall have the right to participate in the defense of such claim thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. 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 or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) If Any claim on account of Damages which does not involve a claimThird Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, whether between except to the parties or extent that the Indemnifying Party shall have been actually prejudiced by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) such failure. If the Indemnifying Party does not elect dispute its liability to assume control or otherwise participate the Indemnitee with respect to the claim made in such notice by notice to the defense Indemnitee prior to the expiration of any thirda 30-party calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall be bound by pay the results obtained amount of such liability to the Indemnitee on demand or, in good faith by the Indemnified case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim.
(f) The indemnification rights , as provided above, the Indemnifying Party and the Indemnitee shall proceed in Sections 12.2 and 12.3 hereof shall extend good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the shareholders, directors, officers and Affiliates of the Indemnified Indemnifying Party, although for the purpose of Indemnifying Party and the procedures set forth Indemnitee will resolve such dispute in this accordance with Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party14.11.
Appears in 2 contracts
Sources: Asset Purchase Agreement (General Motors Corp), Asset Purchase Agreement (General Motors Corp)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The If a party claiming the seeking indemnification (the “Indemnified Party”) shall claim to have suffered a Loss for which indemnification is available under Section 8.2 or 8.3, as the case may be, the Indemnified Party shall promptly give notice to notify the party from whom the responsible for indemnification is claimed under this Article VIII (the “Indemnifying Party”) in writing of any such claim whether between which written notice shall describe the parties nature of such claim, the facts and circumstances that give rise to such claim and the amount of such claim if reasonably ascertainable at the time such claim is made (or brought if not then reasonably ascertainable, the maximum amount of such claim reasonably estimated by the Indemnified Party) (such notification being the “Claim Certificate”). In the event that within thirty (30) days after the receipt by the Indemnifying Party of such a third party against written notice from the Indemnified Party, specifying (i) the factual basis for Indemnified Party shall not have received from the Indemnifying Party a written objection to such claim, and (ii) the amount of the claim. If a such claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given conclusively presumed and considered to have been assented to and approved by the Indemnifying Party following receipt by the Indemnifying Party of a written notice from the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Partyeffect.
(b) Following receipt If an Indemnifying Party objects to the indemnification of notice from the an Indemnified Party in respect of a claimany claim or claims specified in any Claim Certificate, the Indemnifying Party shall have deliver a written notice to such effect to the Indemnified Party within thirty (30) days in which to make such investigation of the claim as after receipt by the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigationClaim Certificate. Thereafter, the Indemnifying Party and the Indemnified Party agrees shall attempt in good faith to make available to agree upon the Indemnifying Party and/or its authorized representative(srights of the respective parties for a period of not less than thirty (30) the information relied upon days after receipt by the Indemnified Party of such written objection with respect to substantiate each of such claims to which the claimIndemnifying Party has objected. If the Indemnified Party and the Indemnifying Party agree at or prior with respect to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claimclaims, or if the Indemnifying Indemnified Party does not respond to such notice, and the Indemnifying Party shall immediately pay to promptly prepare and sign a memorandum setting forth such agreement. Should the Indemnified Party and the full Indemnifying Party fail to agree as to any particular item or items or amount of the claim; providedor amounts (each, that the amount held in escrow to secure Sellers’ indemnification of Buyer a “Disputed Claim”) within such 30-day period, then either party shall be paid in satisfaction of any entitled to pursue its available remedies for resolving its claim payable by Sellers until that amount is exhausted (if it is)for indemnification.
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the An Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such promptly reimburse an Indemnified Party for all Losses under a claim, and the or Buyer may offset amounts due to Buyer or its Affiliates as an Indemnified Party shall cooperate fully with against amounts due to Seller under the Indemnifying PartyNote, subject to reimbursement for reasonable actual out-of-pocket expense incurred after thirty (30) days passes from the receipt of a Claim Certificate by the Indemnified Party as the result of a request without objection by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claimor, the Indemnified Party shall have the right to participate in the defense of such event a claim at its own expense.
(d) If a claimis disputed, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates resolution of the Indemnified Party, although for ’s claim is reached under the purpose terms of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party8.4(b).
Appears in 2 contracts
Sources: Purchase Agreement (Energy & Power Solutions, Inc.), Purchase Agreement (Energy & Power Solutions, Inc.)
Procedures for Indemnification. The procedures for If a claim or demand is made against an Indemnitee by any person who is not a party to this Distribution Agreement (a "Third Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Distribution Agreement, such Indemnitee shall be as follows:
notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim promptly (aand in any event within 20 business days) The party claiming after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that failure to give such notification within such 20 business day period shall not affect the indemnification (the “Indemnified Party”) shall promptly give notice provided hereunder except to the party from whom extent the indemnification is claimed 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 20 business days) after the Indemnitee's receipt thereof, copies of any claim whether between all notices and documents (including court papers) received by the parties or brought by a third party against Indemnitee relating to the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claimThird Party Claim. If a claim relates to Third Party Claim is made against an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claimIndemnitee, the Indemnifying Party shall have thirty (30) days be entitled to participate in which the defense thereof and, if it so chooses and acknowledges in writing its obligation to make indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided that such investigation of counsel is not reasonably objected to by the claim as Indemnitee. Should the Indemnifying Party shall deem necessary or desirable. For so elect to assume the purposes defense of such investigation, the Indemnified a Third Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such noticeClaim, the Indemnifying Party shall immediately pay not be liable to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement Indemnitee for reasonable actual out-of-pocket expense legal or other expenses subsequently incurred by the Indemnified Party Indemnitee in connection with the defense thereof except as the result otherwise expressly provided for in Section 2.9 of a request by the Indemnifying Party to so cooperatethis Distribution Agreement. If the Indemnifying Party elects to assume control of the defense of any third-party claimassumes such defense, the Indemnified Party Indemnitee shall have the right to participate in the defense of such claim thereof and to employ counsel, at its own expense.
(d) If a claim, whether between separate from the parties or counsel employed by a third partythe Indemnifying Party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If it being understood that the Indemnifying Party does not elect shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee (i) for any period during which the Indemnifying Party has failed to assume control the defense thereof (other than during the 20 business day period prior to the time the Indemnitee shall have given notice of the Third Party Claim as provided above) or otherwise participate (ii) in the defense event the Indemnitee reasonably determines, based on the advice of any third-party claimits counsel that there shall exist a conflict of interest between the Indemnitee and the Indemnifying Party or that there are defenses available to the Indemnitee that are not available to the Indemnifying Party, the effect of which shall be to make it impractical for the Indemnitee and the Indemnifying Party to be jointly represented by the same counsel, in which case the Indemnifying Party shall be bound by liable for the results obtained fees and expenses of one counsel for all Indemnitees in good faith by any single or series of related Actions. If the Indemnified Indemnifying Party so elects to assume the defense of any Third Party Claim, the Indemnitee shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for indemnification of a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholdersto, directorsor settle, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4compromise or discharge, any indemnification claims by such parties shall be made by and through the Indemnified Party.Third C-13
Appears in 2 contracts
Sources: Agreement and Plan of Distribution (New Grancare Inc), Agreement and Plan of Distribution (New Grancare Inc)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification THIRD PARTY CLAIMS. If a claim or demand is made against an IMS Indemnitee or a ST Indemnitee (the each, an “Indemnified PartyIndemnitee”) 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 promptly give notice to notify the party from whom the which is or may be required pursuant to Section 3.1 or Section 3.2 hereof to make such indemnification is claimed (the “Indemnifying Party”) in writing, and in reasonable detail, of the Third Party Claim promptly (and in any claim whether between event within fifteen (15) business days) after receipt by such Indemnitee of written notice of the parties or brought by 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 third party against result of such failure (except that the Indemnified 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, specifying promptly (iand in any event within five (5) business days) after the factual basis for such claimIndemnitee’s receipt thereof, copies of all notices and documents (iiincluding court papers) received by the amount of Indemnitee relating to the claimThird Party Claim. If a claim relates to Third Party Claim is made against an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claimIndemnitee, the Indemnifying Party shall have be entitled to participate in the defense thereof and, if 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 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, within thirty 30 days (30) days in which to make such investigation or sooner if the nature of the claim as Third Party Claim so requires), notify the Indemnitee of its intent to do so, and the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available thereafter not be liable to the Indemnifying Party and/or its authorized representative(s) the information relied upon Indemnitee for legal or other expenses subsequently incurred by the Indemnified Party to substantiate Indemnitee in connection with the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension defense thereof) to the validity and amount of ; PROVIDED that such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party Indemnitee shall have the right at its own expense to participate employ counsel to represent such Indemnitee if, in orsuch Indemnitee’s reasonable judgment, if it so elects, to assume control a conflict of the defense interest between such Indemnitee and such Indemnifying Party exists in respect of such claimclaim which would make representation of both such parties by one counsel inappropriate, and in such event the Indemnified Party fees and expenses of such separate counsel shall cooperate fully with the be paid by such Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claimassumes such defense, the Indemnified Party Indemnitee shall have the right to participate in the defense thereof and to employ counsel, subject to the proviso of such claim the preceding sentence, 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 (d) If a claim, whether between other than during the parties or by a third party, requires immediate action, period prior to the parties will make all reasonable efforts to reach a decision with respect thereto time the Indemnitee shall have given notice of the Third Party Claim as expeditiously as possible.
(e) provided above). If the Indemnifying Party does not elect so elects to assume control or otherwise participate in the defense of any third-party claimThird Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof, including by providing or causing to be provided Records and witnesses as soon as reasonably practicable after receiving any request therefor from or on behalf of the Indemnifying Party. If the Indemnifying Party acknowledges in writing responsibility 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; 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 and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee; PROVIDED, HOWEVER, that the Indemnitee may refuse to agree to any such 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 settlement, compromise or discharge. If an Indemnifying Party elects not to assume the defense of a Third Party Claim, or fails to notify an Indemnitee of its election to do so as provided herein, such Indemnitee may compromise, settle or defend such Third Party Claim. 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 bound entitled to assume the defense of the portion relating to money damages.
(b) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the results obtained place of such Indemnitee as to any events or circumstances in good faith by the Indemnified Party with respect of which such Indemnitee may have any right or claim relating to such Third Party Claim against any claimant or plaintiff asserting such Third Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
(fc) The indemnification rights remedies provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties Article III shall be made cumulative and shall not preclude assertion by any Indemnitee of any other rights or the seeking of any and through the Indemnified all other remedies against any Indemnifying Party.
Appears in 2 contracts
Sources: Distribution Agreement, Distribution Agreement (Dendrite International Inc)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) Any claim under SECTION 3.05, SECTION 4.01 or SECTION 4.02 or any other Section of this Agreement on account of a Loss which does not result from a Third Party Claim shall promptly give be asserted by written notice given by or on behalf of an Indemnitee to the party from whom the indemnification is claimed (the “relevant Indemnifying Party”) . Such Indemnifying Party shall have a period of any claim whether between 30 calendar days after the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for receipt of such claim, and (ii) the amount of the claimnotice within which to respond thereto. If a any such claim relates to is not paid in full by an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) 30 calendar days after written notice of has been received by the Indemnifying Party, such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnitee and Indemnifying Party shall have thirty (30) days negotiate in which good faith for a reasonable period of time to make settle such investigation of the claim as the amount claimed; PROVIDED, HOWEVER, that such reasonable period shall not, unless otherwise agreed by such Indemnitee and Indemnifying Party shall deem necessary or desirable. For in writing, exceed 45 calendar days from the purposes of time they began such investigationnegotiations; PROVIDED, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of FURTHER, that if such claim, or if the Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. The Indemnitee may, but need not, at any time thereafter bring an Action against the Indemnifying Party to recover the unpaid amount of the claim and, if successful in whole or in part, the Indemnitee also shall be entitled to be paid the expenses of prosecuting such noticeclaim; PROVIDED, HOWEVER, that in the event of any such Action, neither the Indemnitee nor the Indemnifying Party shall immediately pay to assert the Indemnified Party defenses of statute of limitations and laches arising for the full amount of period beginning after the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party date they began negotiations hereunder as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate provided in the defense of such claim at its own expensepreceding sentence.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 2 contracts
Sources: Distribution Agreement (Hussmann International Inc), Distribution Agreement (Midas Group Inc)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the seeking indemnification under Section 12 hereof (the “Indemnified Party”) shall promptly agrees to give prompt notice to the party from Party against whom the indemnification indemnity is claimed sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder; provided that the failure to notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have materially and adversely prejudiced the Indemnifying Party. The Indemnifying Party shall not be liable under this Section 12.2 for any settlement of Third Party Claims (as defined below) effected without its consent and in violation of Section 12.2(b) hereof.
(b) The Indemnifying Party shall be entitled to participate in the defense of any claim whether between the parties or brought asserted by a any third party and arising from the breach of obligations under this Agreement and/or any other Transaction Agreement (“Third Party Claim”) and, subject to the limitations set forth in this Section 12.2, shall be entitled to control and appoint lead counsel for such defense, in each case at its expense, provided that prior to assuming control of such defense, the Indemnifying Party must acknowledge that it would have an indemnity obligations for Loss resulting from such Third Party Claims as provided under this Section 12.2. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled or obligated to assume or maintain control of the defense of any Third Party Claim nor pay the fees and expense of counsel retained by the Indemnified Party if (i) the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation against the Indemnified Party and/or willful misconduct or gross negligence of the Indemnified Party, specifying (i) the factual basis for such claim, and or (ii) the amount of the claim. If a claim relates to Third Party Claim seeks an action, suit, injunction or proceeding filed by a third party equitable relief against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(bc) Following receipt If the Indemnifying Party shall assume the control of notice from the Indemnified defense of any Third Party Claim in accordance with the provisions of a claimSection 12.2(b), the Indemnifying Party shall have thirty (30) days in which to make such investigation obtain the prior written consent of the claim Indemnified Party (which shall not be unreasonably withheld or delayed) before entering into any settlement of such Third Party Claim.
(d) The Indemnified Party shall be entitled to participate in the defense of any Third Party Claim and to employ one law firm as separate counsel of its choice for such purpose. The reasonable fees and expenses of such separate counsel shall be borne by the Indemnified Party, provided that the Indemnifying Party shall deem necessary or desirable. For not pay the purposes reasonable fees and expenses of such investigationseparate counsel, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s(i) the information relied upon incurred by the Indemnified Party prior to substantiate the claim. If date the Indemnified Indemnifying Party assumes control of the defense of the Third Party Claim and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does is not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, otherwise required to assume control of the defense of such claimThird Party Claim, or (ii) if representation of both the Indemnifying Party and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result same counsel would create a conflict of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possibleinterest.
(e) If the Indemnifying The Indemnified Party does not elect shall take all reasonable steps to assume control avoid or otherwise participate in the defense mitigate its Losses upon and after becoming aware of any third-event or condition which would reasonably be expected to give rise to any Losses that are indemnifiable under this Agreement and/or any other Transaction Agreement, including taking all reasonable steps to enforce any claim for indemnification for such Losses under any contract with any third party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to (including any insurance coverage) that may cover any portion of such claimLosses.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 2 contracts
Sources: Joint Venture Framework Agreement (Photronics Inc), Joint Venture Framework Agreement (Photronics Inc)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the Any Person making a claim for indemnification under Section 13.2 or Section 13.3 (the an “Indemnified Party”) shall promptly give notice to notify the party from against whom the indemnification is claimed sought (the an “Indemnifying Party”) of the claim in writing promptly after receiving notice of any claim whether between action, lawsuit, proceeding, investigation, demand or other Claim against the parties or brought Indemnified Party by a third party against (a “Third Party Claim”), describing the Indemnified PartyThird Party Claim, specifying (i) the factual basis for such claim, and (ii) the amount thereof (if known and quantifiable) and the basis thereof in reasonable detail (such written notice, an “Indemnification Notice”); provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the claim. If a claim relates extent that (and only to an action, suit, or proceeding filed by a third party against the extent that) such failure shall have caused the indemnifiable Losses to be greater than such Losses would have been had the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written prompt notice of such action, suit, or proceeding shall have been given to the Indemnified Partyhereunder.
(b) Following receipt of notice from the Indemnified Party of a claim, the Any Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim Third Party Claim at such Indemnifying Party’s expense, and at its own expenseoption shall be entitled to assume the defense thereof by appointing a reputable counsel reasonably acceptable to the Indemnified Party to be the lead counsel in connection with such defense; provided that such assumption of the defense shall be deemed to constitute an admission of Liability with respect to the Third Party Claim for the purposes of this Agreement; provided further, that the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ counsel of its choice for such purpose (provided that the fees and expenses of such separate counsel shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this ARTICLE XIII). Notwithstanding the foregoing, if (i) the Third Party Claim is primarily for non-monetary damages against the Indemnified Party or seeks an injunction or other equitable relief that, if granted, would reasonably be expected to be material to the Indemnified Party, (ii) the Indemnified Party shall have determined in good faith that an actual or potential conflict of interest makes representation of the Indemnifying Party and the Indemnified Party by the same counsel or the counsel selected by the Indemnifying Party inappropriate, (iii) the Third Party Claim is by a customer or supplier, the loss of the commercial relationship with whom would be materially adverse to the Business, or (iv) the Third Party Claim is a criminal Proceeding, then in each case the Indemnified Party may, upon notice to the Indemnifying Party, assume the exclusive right to defend, compromise and settle such Third Party Claim and the reasonable fees and expenses of the Indemnified Party’s separate counsel shall be borne (A) in the case of (i) and (iv) above, by the Indemnifying Party to the extent the Third Party Claim is indemnifiable hereunder (but only to the extent such separate counsel agrees to comply with any written guidelines established by the Indemnifying Party that are applicable to substantially all outside counsel retained by such Indemnifying Party, which guidelines shall be provided to the Indemnified Party promptly upon the Indemnifying Party’s receipt of notice of the Indemnified Party’s assumption of the defense of such Third Party Claim) and (B) in the case of (ii) and (iii) above, by the Indemnified Party.
(c) Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of the Third Party Claim, unless the Indemnifying Party consents in writing to such payment or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such Liability. Notwithstanding anything to the contrary herein, the Indemnifying Party shall not compromise or settle, or admit any Liability with respect to, any Third Party Claim without the prior written consent of the Indemnified Party, (which consent shall not be unreasonably withheld or delayed), unless the relief consists solely of (i) money damages (all of which the Indemnifying Party shall pay), and (ii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto.
(d) If a claim, whether between the parties or by a third party, requires immediate actionIn all cases, the parties will make all Indemnified Party shall provide its reasonable efforts cooperation with the Indemnifying Party in defense of claims or litigation, including by making employees, information and documentation reasonably available. If the Indemnifying Party shall not reasonably promptly assume the defense of any such Third Party Claim, or fails to reach prosecute or withdraws (such failure to prosecute or withdrawal shall not effect the admission of liability based on the assumption of the defense of such Third Party Claim) from the defense of any such Third Party Claim, the Indemnified Party may defend against such matter in a decision manner consistent with respect thereto as expeditiously as possiblethe above provisions regarding conduct of the defense by the Indemnified Party; provided that the Indemnified Party may not settle any such matter without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).
(e) If In the Indemnifying Party does not elect event that any party or any of its Subsidiaries alleges that it is entitled to assume control indemnification hereunder, and that its Claim is covered under more than one provision of this ARTICLE XIII, such party or otherwise participate in the defense of any third-party claim, the Indemnifying Party Subsidiaries shall be bound by entitled to elect the results obtained in good faith by the Indemnified Party with respect to such claimprovision or provisions under which it may bring a claim for indemnification.
(f) The A claim for indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend for any matter not involving a Third Party Claim may be asserted by notice to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any party from whom indemnification claims by such parties shall be made by and through the Indemnified Partyis sought.
Appears in 2 contracts
Sources: Purchase Agreement (Tyco International LTD /Ber/), Purchase Agreement (Aecom Technology Corp)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The Promptly after receipt by an indemnified party claiming the indemnification (the “Indemnified Party”) shall promptly give notice pursuant to the party from whom provisions of Section 9.1 or 9.2 of notice of the indemnification is claimed (the “Indemnifying Party”) commencement of any claim whether between action involving the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount subject matter of the claim. If foregoing indemnity provisions, such indemnified party shall, if a claim relates thereof is to be made against an action, suit, or proceeding filed by a third indemnifying party against the Indemnified Party such notice shall be given by the Indemnified Party pursuant to the Indemnifying Party within ten (10) days after written notice provisions of Section 9.1 or 9.2, promptly notify such action, suit, or proceeding shall indemnifying party of the commencement thereof; but the omission to so notify such indemnifying party will not relieve it from any liability which it may have been given to the Indemnified Party.
(b) Following receipt indemnified party otherwise than hereunder. In case such action is brought against an indemnified party and it notifies the indemnifying party of notice from the Indemnified Party of a claimcommencement thereof, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third indemnifying party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in orin, if and, to the extent that it so electsmay wish, to assume control of the defense of thereof, with counsel satisfactory to such claimindemnified party; provided, however, if the defendants in any action include both the indemnified party and the Indemnified Party indemnifying party and the indemnified party shall cooperate fully with have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the Indemnifying Partyindemnifying party, subject to reimbursement or if there is a conflict of interest which would prevent counsel for reasonable actual out-of-pocket expense incurred by the Indemnified Party as indemnifying party from also representing the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claimindemnified party, the Indemnified Party indemnified party shall have the right to select separate counsel to participate in the defense of such claim action on behalf of such indemnified party. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to the indemnified party pursuant to the provisions of such Section 9.1 or 9.2 for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (a) the indemnified party shall have employed counsel in accordance with the proviso of the preceding sentence, (b) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after the notice of the commencement of the action, or (c) the indemnifying party has authorized the employment of counsel for the indemnified party at its own expense.
(d) If a claim, whether between the parties or by a third expense of the indemnifying party. No indemnifying party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claimsuch claim or litigation, shall, except with the Indemnifying Party shall be bound by consent of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the results obtained release from all liability in good faith by the Indemnified Party with respect repsect to such claimclaim or litigation.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 2 contracts
Sources: Merger Agreement (Cognex Corp), Merger Agreement (Cognex Corp)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The If there occurs an event that either party claiming asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the party seeking indemnification (the “Indemnified PartyIndemnitee”) shall promptly give provide notice (the “Notice of Claim”) to the other party from whom the or parties obligated to provide indemnification is claimed (the “Indemnifying Party”) ). Providing the Notice of Claim shall be a condition precedent to any claim whether between Liability of the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claimIndemnifying Party hereunder, and (ii) the amount failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the claimextent that such failure materially prejudices the Indemnifying Party hereunder. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party In case any such notice action shall be given by the Indemnified Party brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party within ten (10) days of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after written notice from the Indemnifying Party to such Indemnitee of such actionelection so to assume the defense thereof, suitthe Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, or proceeding in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have been given the right to defend, at the Indemnified sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Following Upon receipt of notice from the Indemnified Party a Notice of a claimClaim, the Indemnifying Party shall have thirty 20 calendar days (30or such shorter period as may be appropriate under the circumstances) days in which to make contest its indemnification obligation with respect to such investigation claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available Claim is submitted to the Indemnifying Party and/or its authorized representative(sthe amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) the information relied upon has been sent or delivered by the Indemnified Party Indemnitee to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to setting forth the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or if bases for the objection of the Indemnifying Party does not respond to such noticethe claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall immediately pay be promptly paid over to the Indemnified Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the full Indemnitee the amount of the claim; providedLoss set forth in the Notice of Claim, that the amount held in escrow to secure Sellers’ indemnification or subsequent Notice of Buyer Liability, shall be paid in satisfaction of any claim payable deemed established and accepted by Sellers until that amount is exhausted (if it is)the Indemnifying Party.
(c) With respect If the Indemnifying Party fails to any claim by a third party as assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to which contest such Claim in good faith, the Indemnified Party is entitled Indemnitee, without waiving its right to indemnification hereunderindemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall have the right at its own expense be permitted to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate join in the defense and settlement of such claim Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the The Indemnifying Party does shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not elect to assume control or otherwise participate in paid within five business days of the defense of any third-party claimdate on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend pay to the shareholdersIndemnitee, directorsimmediately upon demand, officers and Affiliates interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified PartyIndemnitee.
Appears in 2 contracts
Sources: Contribution Agreement (Martin Midstream Partners Lp), Contribution Agreement (Martin Midstream Partners Lp)
Procedures for Indemnification. The procedures No party shall be liable for any Claim for indemnification shall be as follows:
(a) The under this Article V unless written notice of a Claim for indemnification is delivered by the party claiming the seeking indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed sought (the “Indemnifying Party”) prior to the expiration of the applicable survival period, if any, set forth in Section 6.3. If any claim whether between third party notifies the parties or brought by Indemnified Party with respect to any matter which may give rise to a Claim for indemnification (a “Third Party Claim”) against the Indemnifying Party under this Article V, then the Indemnified Party shall notify the Indemnifying Party promptly thereof in writing and in any event within 30 days after receiving notice from a third party against party; provided that no delay on the part of the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder except to the extent the Indemnifying Party is materially prejudiced thereby. All notices given pursuant to this Section 5.3 shall describe with reasonable specificity the Third Party Claim and the basis of the Indemnified Party, specifying (i) the factual basis ’s Claim for such claim, and (ii) the amount of the claimindemnification. If a claim relates to an action, suit, or proceeding filed by a third party against Upon the Indemnified Party such giving notice shall be given by of the Indemnified Third Party Claim to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which be entitled to make such investigation participate therein and, to the extent desired, to assume the defense thereof with counsel of the claim its choice as long as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, in writing that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunderby the Indemnifying Party for such action. If the Indemnifying Party provides the Indemnified Party with notice of its determination to assume the defense of such Third Party Claim, the Indemnified Party may nevertheless participate in (but not control) such defense, but the Indemnifying Party shall have the right at its own expense not be liable to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense any legal or other expenses subsequently incurred by the Indemnified Party as in connection with the result defense of a request by the Third Party Claim, other than reasonable costs of investigation, unless the Indemnifying Party to so cooperatedoes not actually assume the defense thereof following notice of such election. If the Indemnifying Party elects to does not assume control of the defense of any third-party claimsuch Third Party Claim, the Indemnified Party shall have the right to participate in undertake the defense of such claim at Third Party Claim, by counsel or other representatives of its own expense.
(d) If a claimchoosing, whether between on behalf of and for the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If account and risk of the Indemnifying Party. Neither the Indemnified Party does not elect to assume control or otherwise participate in the defense of any third-party claim, nor the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend consent to the shareholders, directors, officers and Affiliates entry or any judgment or enter into any settlement of any Third Party Claim that might give rise to liability of the Indemnified Partyother party under this Article V without such party’s consent, although for the purpose of the procedures set forth in this Section 12.4which consent shall not be unreasonably withheld, any indemnification claims by such parties shall be made by and through the Indemnified Partyconditioned or delayed.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Hyperion Energy, Inc.), Stock Purchase Agreement (Hyperion Energy, Inc.)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) that may be entitled to indemnity hereunder shall promptly give prompt notice to the party from whom the indemnification is claimed obligated to give indemnity hereunder (the “Indemnifying Party”) of the assertion of any claim whether between claim, or the parties commencement of any suit, action or brought proceeding (including but not limited to environmental enforcement actions), or Indemnified Party’s intent to conduct any non-enforcement related Required Remedial Environmental Compliance Activity which would not involve formal proceedings, in respect of which indemnity may be sought hereunder. Any failure on the part of any Indemnified Party to give the notice described in this Section 8.4(a) shall relieve the Indemnifying Party of its obligations under this Article 8 only to the extent that such Indemnifying Party has been prejudiced by a third party against the lack of timely and adequate notice (except that the Indemnifying Party shall not be liable for any expenses incurred by the Indemnified Party during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly (and in any event within 10 days thereof) after the Indemnified Party’s receipt thereof, specifying copies of all notices and documents (iincluding court papers) received by the factual basis for Indemnified Party relating to such claim, and (ii) the amount of the claim. If a claim relates to an action, suit, proceeding or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified PartyRequired Remedial Environmental Compliance Activity.
(bi) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunderExcept for non-enforcement related Required Remedial Environmental Compliance Activity, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, obligation to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense or settlement of any third-party claim, suit, action or proceeding (including enforcement related Required Remedial Environmental Compliance Activity) in respect of which indemnity may be sought hereunder, provided that (i) the Indemnified Party shall at all times have the right, at its option, to participate fully therein, and (ii) if the Indemnifying Party does not proceed diligently to defend the third-party claim, suit, action or proceeding within 10 days after receipt of notice of such third-party claim, suit, action or proceeding, the Indemnified Party shall have the right right, but not the obligation, to participate in the defense of such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in undertake the defense of any such third-party claim, suit, action or proceeding.
(ii) With regard to non-enforcement related Required Remedial Environmental Compliance Activity, the Indemnifying Party shall be bound have the obligation to assist the Indemnified Party by providing information regarding past noncompliance to delineate the necessary extent of the Required Remedial Environmental Compliance Activity and to indemnify the Indemnified Party for Reasonable Costs and Expenses incurred in performing the Required Remedial Environmental Compliance Activity as recommended by an environmental professional. Prior to performing any Activity, the Indemnified Party shall have the obligation to provide reasonable notice to the Indemnifying Party of the voluntary Required Remedial Environmental Compliance Activity recommended by the results obtained in good faith by environmental professional. At the request of the Indemnifying Party, the Indemnified party will provide the Indemnifying Party a reasonable opportunity to comment on the proposed Activity and direct the environmental professional recommending the Activity to consider these comments before finalizing its proposal. The Indemnifying Party has no right or opportunity pursuant to this Agreement to veto the environmental professional’s final proposal once their comments have been considered.
(c) The Indemnifying Party shall not be required to indemnify the Indemnified Party with respect to any amounts paid in settlement of any third-party suit, action, proceeding or investigation entered into without the written consent of the Indemnifying Party; provided, however, that if the Indemnified Party is the Buyer, such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend third-party suit, action, proceeding or investigation may be settled without the consent of the Indemnifying Party on 10 days’ prior written notice to the shareholdersIndemnifying Party if such third-party suit, directorsaction, officers proceeding or investigation is then unreasonably interfering with the business or operations of Buyer and Affiliates the settlement is commercially reasonable under the circumstances; and provided further, that if the Indemnifying Party gives 10 days’ prior written notice to the Indemnified Party of a settlement offer which the Indemnifying Party desires to accept and to pay all Losses with respect thereto (“Settlement Notice”) and the Indemnified Party fails or refuses to consent to such settlement within 10 days after delivery of the Settlement Notice to the Indemnified Party, and such settlement otherwise complies with the provisions of this Section 8.4, the Indemnifying Party shall not be liable for Losses arising from such third-party suit, action, proceeding or investigation in excess of the amount proposed in such settlement offer. Notwithstanding the foregoing, no Indemnifying Party will consent to the entry of any judgment or enter into any settlement without the consent of the Indemnified Party, although if such judgment or settlement imposes any obligation or liability upon the Indemnified Party other than the execution, delivery or approval thereof and customary releases of claims with respect to the subject matter thereof. This subparagraph (c) does not apply to Indemnified Party’s performance of non-enforcement related Required Remedial Environmental Compliance Activities or Indemnifying Party’s indemnification of same.
(d) The parties shall cooperate in defending any such third-party suit, action, proceeding or investigation, and the Indemnifying Party shall have reasonable access to the books and records, and personnel in the possession or control of the Indemnified Party that are pertinent to the defense. The Indemnified Party may join the Indemnifying Party in any suit, action, claim or proceeding brought by a third party, as to which any right of indemnity created by this Agreement would or might apply, for the purpose of enforcing any right of the procedures set forth in indemnity granted to such Indemnified Party pursuant to this Section 12.4, any indemnification claims by such parties shall be made by and through the Agreement. This subparagraph (d) does not apply to Indemnified Party’s performance of non-enforcement related Required Remedial Environmental Compliance Activities or Indemnifying Party’s indemnification of same.
Appears in 1 contract
Sources: Asset Purchase Agreement (Maxum Petroleum Holdings, Inc.)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The If a claim or demand is made against an Indemnified Person, or if an Indemnified Person shall otherwise learn of an assertion, by any Person who is not a party claiming the indemnification to this Agreement (the a “Indemnified PartyThird Party Claim”) shall promptly give notice as to the party from whom the indemnification is claimed which CTI or Shareholders (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the may be obligated to provide indemnification pursuant to this Agreement, an Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to Person will notify the Indemnifying Party within ten (10) days in writing, and in reasonable detail, of the Third Party Claim in a prompt manner a reasonable amount of time after written notice becoming aware of such actionThird Party Claim (the “Claim Notice”); provided, suithowever, or proceeding that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure; provided, further, however, that in any event, such notification must be given within the particular survival period noted in Section 10.1 above to the Indemnified Partybe eligible for indemnification.
(b) Following receipt of notice from the If a Third Party Claim is made against an Indemnified Party of a claimPerson, the Indemnifying Party shall have thirty will be entitled to assume the defense thereof (30) days in which to make such investigation at the expense of the claim Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to AudioCodes. Should the Indemnifying Party so elect to assume the defense and settlement of a Third Party Claim, the Indemnifying Party will not be liable to an Indemnified Person for any legal or other expenses incurred by an Indemnified Person in connection with the defense thereof as long as the Indemnifying Party shall deem necessary or desirable. For the purposes diligently conducts such defense; provided that, if a conflict of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount interest exists in respect of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the an Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall Person will have the right at its own expense to participate employ separate counsel to represent the Indemnified Person and in or, if it so elects, to assume control of that event the defense reasonable fees and expenses of such claim, and the Indemnified Party shall cooperate fully with the separate counsel will be paid by such Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the . An Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall Person will have the right to participate in the defense of such claim thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for the reasonable fees and expenses of counsel employed by an Indemnified Person for any period after the receipt of the Claim Notice during which the Indemnifying Party has failed to assume the defense thereof. The Indemnifying Party will promptly supply to AudioCodes copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep AudioCodes fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to AudioCodes on request updates and summaries as to the status thereof). Indemnified Person will reasonably cooperate with the Indemnifying Party in the defense thereof if requested by the Indemnifying Party (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Indemnifying Party will not consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim which does not include a provision whereby the plaintiff or claimant in the matter releases the relevant Indemnified Party from all Liability with respect thereto, without AudioCodes’ prior written consent which will not be unreasonably withheld.
(d) If Any claim on account of Damages which does not involve a claim, whether between the parties or Third Party Claim shall be asserted by a third party, requires immediate action, the parties will make all reasonable efforts written notice given by an Indemnified Person to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate and by a claim upon the Indemnity Fund as stated in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.Article V.
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming A Lessor Indemnitee or Lessee Indemnitee, as the indemnification case may be (the for purposes of this Section 11.3, an “Indemnified Party”), shall give the indemnifying party under Section 11.1 and Section 11.2, as applicable (for purposes of this Section 11.3, an “Indemnifying Party”), prompt written notice (a “Claim Notice”) of any matter which it has determined has given or could give rise to a right of indemnification under this Lease Agreement (a “Claim”) stating the amount of the Loss, if known, and method of computation thereof, containing a reference to the provisions of this Lease Agreement in respect of which such right of indemnification is claimed or arises; provided, that the failure to provide such notice shall promptly not release the Indemnifying Party from its obligations under this Article XI except to the extent, and only to the extent, the Indemnifying Party is prejudiced by such failure or to the extent the survival period, if applicable, expires prior to the giving of such notice. The Indemnifying Party shall have [***] after its receipt of a Claim Notice to give notice to the party from whom Indemnified Party, in writing, either denying its obligations to, or agreeing to fully, indemnify and defend the indemnification is claimed Claim.
(b) If the “Indemnifying Party notifies the Indemnified Party that it agrees to fully indemnify and defend the Indemnified Party against the Claim in accordance with Section 11.3(a), then the Indemnifying Party will have the right to assume and thereafter conduct (at its sole expense) the defense of the Claim with counsel of its choice reasonably satisfactory to the Indemnified Party”) ; provided, that the Indemnifying Party shall not consent to the entry of any claim whether between judgment or enter into any settlement with respect to the parties Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld, delayed or brought conditioned) unless the judgment or proposed settlement involves only the payment of money damages and (i) does not impose an injunction or other equitable relief upon the Indemnified Party and (ii) includes as an unconditional term thereof giving of a release from all liability with respect to such Claim by each claimant or plaintiff to each Indemnified Party that is the subject of such Claim.
(c) If (i) the Indemnifying Party fails to assume the defense of a third party Claim in accordance with Section 11.3(a), (ii) an Indemnified Party determines in good faith that an adverse determination with respect to the proceeding giving rise to such Claim for indemnification would be materially detrimental to or injure the Indemnified Party’s reputation or future business prospects, (iii) the Claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (iv) the Claim seeks an injunction or equitable relief against the Indemnified Party, specifying (v) under applicable standards of professional conduct, a conflict of interest on any significant issue related to such proceeding exists between the Indemnifying Party, on the one hand, and an Indemnified Party, on the other hand, or (vi) the Indemnifying Party is failing to vigorously prosecute or defend such Claim, then, in each case, upon notice to the Indemnifying Party, the Indemnified Party may, in its sole discretion, retain counsel satisfactory to it to assume such defense on behalf of and for the sole account and risk of the Indemnifying Party, and in the case of clauses (i) the factual basis for such claim, and through (iivi) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make pay all reasonable fees and expenses of such investigation of counsel for the claim as Indemnified Party, and the Indemnifying Party shall deem necessary or desirablecooperate in the defense of any such matter. For In the purposes of such investigation, event that the Indemnified Party agrees to make available to assumes the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party conduct and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claima Claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, then the Indemnifying Party shall not be bound by the results obtained in good faith by the Indemnified Party with respect to such claimliable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “"Indemnified Party”") shall promptly give notice to the party from whom the indemnification is claimed (the “"Indemnifying Party”") of any claim claim, whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a the claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten five (105) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of . Buyer shall be paid in satisfaction entitled to apply any or all of the Accounts Receivable collected on behalf of Sellers to a claim as to which Buyer is entitled to indemnification hereunder. If the Indemnified Party and the Indemnifying Party do not agree within said period (or within any claim payable by Sellers until that amount is exhausted (if it isagreedupon extension thereof), the Indemnified Party may seek appropriate legal remedy.
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, or to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 10.2 and 12.3 10.3 hereof shall extend to the shareholders, directors, officers officers, members, partners, agents, employees, and Affiliates representatives of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.410.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The If there occurs an event which any Buyer Indemnitee asserts is an indemnifiable event pursuant to Section 7.2 or 7.3, the Buyer or Buyer Indemnitee shall promptly provide notice (the “Notice of Claim”) to the Seller that is obligated to provide indemnification hereunder (each, a “Seller Indemnifying Party” and collectively, the “Seller Indemnifying Parties”) or to the Sellers Representative on behalf of such Seller Indemnifying Party(ies). Providing the Notice of Claim shall be a condition precedent to any liability of the Seller Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Seller Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Seller Indemnifying Party hereunder.
(b) If there occurs an event which any Seller Indemnitee asserts is an indemnifiable event pursuant to Section 7.4, the Sellers Representative on behalf of a Seller Indemnitee shall promptly provide a Notice of Claim to the Buyer, as the party claiming the obligated to provide indemnification (the “Indemnified Buyer Indemnifying Party”) ” and together with the Seller Indemnifying Parties, each shall promptly give notice be referred to the party from whom the indemnification is claimed (as an “Indemnifying Party” and collectively, the “Indemnifying PartyParties”). Providing the Notice of Claim shall be a condition precedent to any liability of the Buyer Indemnifying Party hereunder, and the failure to provide prompt notice as provided herein will relieve the Buyer Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Buyer Indemnifying Party hereunder.
(c) In case any third-party Action or Proceeding shall be brought against any Buyer Indemnitee, Buyer, on behalf of any claim whether between the parties or brought by Buyer Indemnitees shall provide a third party against Notice of Claim to the Indemnified Seller Indemnifying Party, specifying or to the Sellers Representative on behalf of such Seller Indemnifying Party(ies), of the commencement thereof. The Buyer Indemnitee shall then have the right, in its sole discretion, to defend and settle or resolve any such claim, and the reasonable cost and expense incurred by the Buyer Indemnitees in connection with such defense, settlement or resolution shall be included in Losses for which the Buyer Indemnitees shall be entitled to indemnification hereunder; provided, however, that (i) the factual Buyer Indemnitees shall not agree to any settlement in excess of $250,000 individually, or $500,000 in the aggregate for all such settlements, without the prior written consent of the Sellers Representative, such prior written consent not to be unreasonably withheld, conditioned or delayed (and with the Sellers Representative agreeing to respond in writing within 15 Business Days of written notice to the Sellers Representative of a proposed settlement with an acceptance or rejection of such settlement, and in the case of an objection, the details and basis for such claimtherefor), and (ii) any settlement without the prior written consent of the Sellers Representative shall not in and of itself be determinative of the existence of such Losses or whether such matter is indemnifiable hereunder. The Sellers Representative, on behalf of the Seller Indemnifying Party(ies), shall have the right to participate at its or the Seller Indemnifying Party(ies) own expense in the defense of such claim (to the extent that such participation does not affect any privilege relating to any Buyer Indemnitee) but shall not be entitled to assume or control the defense of such claim.
(d) Upon receipt of a Notice of Claim, the Indemnifying Party (or, if applicable, the Sellers Representative on behalf of such Indemnifying Party) shall have 20 calendar days to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the claim. If Loss in respect thereof has not yet been determined, such 20-day period in respect of, but only in respect of the amount of the Loss, shall not commence until a claim relates to an action, suit, further written notice (the “Notice of Liability”) has been sent or proceeding filed by a third party against the Indemnified Party such notice shall be given delivered by the Indemnified Party Indemnitee to the Indemnifying Party within ten (10) days after written notice or, if applicable, the Sellers Representative on behalf of such actionIndemnifying Party) setting forth the amount of the Loss that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, suitand if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20-day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or proceeding subsequent Notice of Liability, shall have been given to be deemed established and accepted by the Indemnified Indemnifying Party.
(be) Following receipt of notice from If a Contest Notice is provided to the Indemnified Party of a claimIndemnitee within the 20-day period referred to in Section 7.5(d), the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party Indemnitee and the Indemnifying Party agree at or prior (or, if applicable, the Sellers Representative on behalf of such Indemnifying Party) shall attempt in good faith for 45 days after the Indemnitee’s receipt of the Contest Notice to resolve such objection. If the Indemnitee and the Indemnifying Party (or, if applicable, the Sellers Representative on behalf of such Indemnifying Party) shall so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties. If no such agreement can be reached during the 45-day period for good faith negotiation, but in any event upon the expiration of said thirty (30) such 45-day period (period, either the Buyer or any agreed upon extension thereof) Sellers Representative may submit the dispute to mandatory, final and binding arbitration pursuant to Section 10.15 below and the decision of the arbitrator as to the validity and amount of such claimany claim in the relevant Notice of Claim shall be nonappealable, or if binding and conclusive upon the Indemnifying Party does not respond parties to such noticethis Agreement.
(f) Subject to the foregoing, the Indemnifying Party shall immediately pay make any payment required to be made under this Article in cash and on demand (to the Indemnified extent, if applicable, that such amount is not recovered by Buyer from the Escrow Fund). Any payments required to be paid by an Indemnifying Party the full amount under this Article that are not paid within 10 Business Days of the claim; provideddate on which such obligation becomes final shall thereafter be deemed delinquent, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, and the Indemnifying Party shall have pay to the right Indemnitee, immediately upon demand, interest at its own expense the rate of 5% per annum, not to participate in orexceed the maximum nonusurious rate allowed by applicable Law, if it so electsfrom the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to assume control be Losses of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expenseIndemnitee.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Vocera Communications, Inc.)
Procedures for Indemnification. The procedures Whenever a claim shall arise for indemnification shall be as follows:
(a) The under Section 16 of this Agreement, the party claiming the entitled to indemnification (the “"Indemnified Party”") shall promptly give notice to notify the party from whom the indemnification is claimed sought (the “"Indemnifying Party”") of such claim and, when known, the facts constituting the basis for such claim; provided, however, that in the event of any claim whether between for indemnification hereunder resulting from or in connection with any claim or Legal Proceedings by a third party, the parties Indemnified Party shall give such notice thereof to the Indemnifying Party not later than ten (10) business days prior to the time any response to the asserted claim is required, if possible, and in any event within five (5) business days following receipt of notice thereof. The Indemnified Party's failure to give notice of any claim or brought Legal Proceeding by a third party against shall not constitute a defense (in whole or in part) to any claim for indemnification by the Indemnified Party, specifying (i) except and only to the factual basis extent that such failure shall result in any material prejudice to the Indemnifying Party. In the event of any such claim for such claim, and (ii) the amount of the claim. If indemnification resulting from or in connection with a claim relates to an action, suit, or proceeding filed Legal Proceeding by a third party against party, the Indemnifying Party may, at its sole cost and expense, assume the defense thereof; provided, however, that the Indemnifying Party shall first have agreed in writing that it does not and will not contest its responsibility for indemnifying the Indemnified Party in respect of Losses, attributable to such notice shall be given by the Indemnified Party to the claim or proceeding. If an Indemnifying Party within ten (10) days after written notice assumes the defense of any such action, suit, claim or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claimLegal Proceeding, the Indemnifying Party shall have thirty (30) days be entitled to select counsel and take all steps necessary in which to make such investigation the defense thereof; provided, however, that no settlement shall be made, other than a settlement involving solely money damages, without the prior written consent of the claim Indemnified Party, which consent shall not be unreasonably withheld; provided, further, that the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. So long as the Indemnifying Party shall deem necessary is in good faith defending such claim or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claimproceeding, the Indemnified Party shall have the right to participate in the defense of not compromise or settle such claim at its own expense.
(d) If a claimwithout the prior written consent of the Indemnifying Party, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) which consent may be withheld in Indemnifying Party's sole discretion. If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claimsuch claim or litigation in accordance with the terms hereof, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to may defend against such claimclaim or litigation in such manner as it may deem appropriate, including settling such claim or litigation.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
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Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The In order for an Indemnified Party to be entitled to any indemnification provided for under this Agreement in respect of a written claim, suit or written demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party must notify the indemnifying party claiming the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claimin writing, and (ii) the amount in reasonable detail, of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against Third Party Claim and the Indemnified Party such notice shall be given facts known by the Indemnified Party relating thereto as promptly as reasonably possible after receipt by such Indemnified Party of notice of the Third Party Claim; provided, however, that failure to give such notification on a timely basis 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. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party Party, within ten five Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (10including court papers) days after written notice of delivered by such action, suit, or proceeding shall have been given Person to the Indemnified PartyParty relating to the Third Party Claim.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement the limitations set forth in this Article VII, has conceded liability to indemnify the Indemnified Party with respect to all Losses relating to such Third Party Claim, then the Indemnifying Party shall have 120 days after receipt of the Indemnified Party’s notice of a given Third Party Claim to elect, at his, her or its option, to assume the defense of any such Third Party Claim, in which case:
(i) the attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs incurred by the Indemnifying Party in connection with defending such Third Party Claim shall be payable by such Indemnifying Party;
(ii) the Indemnified Party shall not be entitled to be indemnified for reasonable any costs or expenses incurred by the Indemnified Party in connection with the defenses of such Third Party Claim following the Indemnifying Party’s assumption of such defense, except for actual out-of-pocket expense costs incurred by in connection with the Indemnified Party as the result of a request Indemnifying Party’s requests for cooperation, which costs shall be reimbursed by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, Party;
(iii) the Indemnified Party shall have be entitled to monitor such defense at his, her or its sole expense; and
(iv) the right to participate in Indemnified Party shall not enter into any agreement providing for the defense settlement or compromise of such claim at its own expense.
(d) If Third Party Claim or the consent to the entry of a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision judgment with respect thereto as expeditiously as possible.
(e) to such Third Party Claim without the prior written consent of the Indemnifying Party. If the Indemnifying Party does not elect give notice to the Indemnified Party of his, her or its election to either assume control or otherwise participate in reject the defense of any third-party claimsuch Third Party Claim within 120 days after receipt of notice of such Third Party Claim, the Indemnifying Party shall be bound for all purposes by any determination made in such Third Party Claim, provided that the results obtained in good faith by Indemnified Party shall provide not less than 20 days’ advance notice of, and an opportunity to consult with respect to, any compromise or settlement of any such Third Party Claim.
(c) If (i) the Indemnifying Party has not conceded liability to indemnify the Indemnified Party with respect to all Losses relating to such claim.
Third Party Claim, or (fii) The indemnification rights provided in Sections 12.2 if the Indemnifying Party elects not to defend such Third Party Claim, then (A) the Indemnified Party shall diligently defend such Third Party Claim, and 12.3 hereof shall extend (B) the Indemnified Party shall, subject to the shareholders, directors, officers limitations and Affiliates of the Indemnified Party, although for the purpose of the procedures conditions set forth in this Article VII, be entitled to seek indemnification under this Article VII in respect of such Third Party Claim, provided, however, that the Indemnified Party shall have no right to seek indemnification under this Article VII in respect of such Third Party Claim for any agreement providing for the settlement or compromise of such Third Party Claim or the consent to the entry of a judgment with respect to such Third Party Claim entered into without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed).
(d) If any Indemnified Party asserts the existence of a claim giving rise to Losses (but excluding Third Party Claims), such Party shall give written notice to the Indemnifying Party. Such written notice shall state that it is being given pursuant to this Section 12.47.4, any indemnification claims specify, in reasonable detail, the nature and amount of the claim (to the extent they are capable of determination). If such Indemnifying Party, within 60 days after the mailing of notice by such parties Indemnified Party, shall not give written notice to such Indemnified Party announcing such Indemnifying Party’s intent to contest such assertion of such Indemnified Party, such assertion shall be made by and through deemed rejected, in which case the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement. If such Indemnifying Party contests such assertion of a claim by giving such written notice to the Indemnified Party within said period, then the Parties shall act in good faith to reach agreement regarding such claim. If litigation or arbitration shall arise with respect to any such claim, the prevailing Party, as determined pursuant to Section 8.15, shall be entitled to reimbursement of costs and expenses, to the extent provided in Section 8.15, incurred in connection with such litigation or arbitration (including reasonable attorneys’ fees and expenses and investigation costs).
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the Any Person making a claim for indemnification under Sections 6.2 or 6.3 (the an “Indemnified Party”) shall promptly give notice to notify the party from against whom the indemnification is claimed sought (the an “Indemnifying Party”) of the claim in writing (such written notice, an “Indemnification Notice”) promptly after receiving notice of any action, lawsuit, proceeding, investigation, demand or other claim whether between against the parties or brought Indemnified Party by a third party against (a “Third Party Claim”). Each such Indemnification Notice shall describe, in reasonable detail to the Indemnified Partyextent practicable, specifying (i) the factual basis applicable Third Party Claim, including the facts giving rise to such claim for such claimindemnification hereunder, and (ii) the amount or method of computation of the amount of the claim. If a such claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party (if known) and such notice shall be given by the Indemnified Party to other information with respect thereto as the Indemnifying Party within ten (10) days after written notice may reasonably request; provided, however, that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of such action, suit, or proceeding shall have been given its obligations hereunder except to the Indemnified Partyextent that (and only to the extent that) the Indemnifying Party is materially prejudiced by such failure.
(b) Following receipt of notice from the Indemnified Party of a claim, the Any Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim Third Party Claim at such Indemnifying Party’s expense, and, at its own expense.
option if exercised within 10 business days after receiving an Indemnification Notice, shall be entitled to assume the defense thereof by appointing a reputable counsel to be the lead counsel in connection with such defense; provided, however, that the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ counsel of its choice for such purpose (d) provided, however, that the fees and expenses of such separate counsel shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this Article VI). If the Indemnifying Party assumes the defense of a claimThird Party Claim, whether between it will be conclusively established for purposes of this Agreement that the parties claims made in that Third Party Claim are within the scope of and subject to indemnification hereunder. Notwithstanding the foregoing, if the Indemnified Party shall have determined in good faith and upon advice of counsel that an actual or likely conflict of interest makes representation of the Indemnifying Party and the Indemnified Party by a third partythe same counsel inappropriate, requires immediate actionor if the Indemnifying Party, in the reasonable judgment of the Indemnified Party, has failed to diligently pursue the relevant claims or defense, then the Indemnified Party may, upon notice to the Indemnifying Party, engage separate counsel, and the reasonable fees and expenses of such separate counsel shall be borne by the Indemnifying Party to the extent the Third Party Claim is indemnifiable hereunder. Notwithstanding anything to the contrary in this Section 6.6(b), the parties Indemnified Party will make all have the absolute right to conduct and control, through counsel of its choosing (the reasonable efforts fees and expenses of which shall be paid by the Indemnifying Party, subject to reach a decision the limitations set forth in this Article VI), the defense, compromise and settlement of any Third Party Claim if: (i) such Third Party Claim seeks an injunction or other equitable relief against the Indemnified Party, (ii) the Third Party Claim relates to or arises in connection with respect thereto as expeditiously as possible.
any criminal or quasi criminal Proceeding, (eiii) If the amount of Losses involved in such Third Party Claim exceeds the then-remaining amount available for indemnification pursuant to Section 6.4(a), or (iv) the Indemnifying Party does not elect to assume control or otherwise participate in of the defense within 10 business days after receiving an Indemnification Notice.
(c) Upon assumption of the defense of any third-party claimsuch Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of the Third Party Claim, unless the Indemnifying Party consents in writing to such payment. Notwithstanding anything to the contrary herein, the Indemnifying Party shall not compromise or settle, or admit any liability with respect to, any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be bound unreasonably withheld, conditioned or delayed), unless the relief consists solely of: (i) money damages (all of which the Indemnifying Party shall pay), and (ii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto.
(d) In all cases, the Indemnified Party shall provide its reasonable cooperation to the Indemnifying Party in defense of claims or litigation relating to Third Party Claims, including by making employees, information and documentation reasonably available. If the results obtained Indemnifying Party does not assume the defense of any such Third Party Claim in good faith accordance with the terms hereof, or fails to prosecute or withdraws from the defense of any such Third Party Claim, the Indemnified Party may defend against such matter in a manner consistent with the above provisions regarding conduct of the defense by the Indemnified Party; provided, however, that the Indemnified Party with respect to may not settle any such claimmatter without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed).
(fe) The indemnification rights provided in Sections 12.2 and 12.3 hereof Any Indemnified Party making a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim shall extend deliver notice of such claim promptly to the shareholdersIndemnifying Party, directorsdescribing in reasonable detail the facts giving rise to any claim for indemnification hereunder, officers and Affiliates the amount or method of computation of the Indemnified Partyamount of such claim (if known) and such other information with respect thereto as the Indemnifying Party may reasonably request; provided, although for however, the purpose failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the procedures set forth in this Section 12.4, any indemnification claims extent that (and only to the extent that) the Indemnifying Party is materially prejudiced by such parties shall be made by and through the Indemnified Partyfailure.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (ARC Group, Inc.)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) As used herein, an "INDEMNIFIED PARTY" means a Purchaser Indemnitee seeking indemnification pursuant to Section 10.2 hereof or a Seller Indemnitee seeking indemnification pursuant to Section 10.3 hereof. The Indemnified Party agrees to give the other party claiming the indemnification (the “Indemnified Party”"INDEMNITOR") shall promptly give prompt written notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties event, or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such any claim, and (ii) the amount of the claim. If a claim relates to an action, suit, demand, assessment, investigation, arbitration or other proceeding filed by or in respect of a third party against the Indemnified Party (a "THIRD PARTY CLAIM") of which it has knowledge, for which such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunderunder this Article X (including in any case copies of any summons, complaint or other pleading which may have been served on it and any written claim, demand, invoice, billing or other document evidencing or asserting the same). No delay on the part of an Indemnified Party in giving the Indemnitor notice of a Third Party Claim shall relieve the Indemnitor from any obligation hereunder unless the Indemnitor is prejudiced thereby.
(b) Within twenty days of delivery of such written notice, the Indemnifying Indemnitor may, at the expense of the Indemnitor, elect to take all necessary steps properly to contest any Third Party shall Claim or to prosecute such Third Party Claim to conclusion or settlement; provided, that without the prior written consent of an Indemnified Party, the Indemnitor will not enter into any settlement of a Third Party Claim which would lead to liability or create any financial or other obligation on the part of such Indemnified Party for which such Indemnified Party is not indemnified hereunder. If the Indemnitor makes the foregoing election, an Indemnified Party will have the right to participate at its own expense in all proceedings. If the Indemnitor does not make such election or if the Indemnitor fails to take reasonable steps necessary to diligently defend such Third Party Claim within twenty days after receiving written notice from the Indemnified Party that the Indemnified Party believes that the Indemnitor has failed to take such steps, an Indemnified Party shall be free to handle the prosecution or defense of any such Third Party Claim, will take all necessary steps to contest the Third Party Claim or to prosecute such Third Party Claim to conclusion or settlement satisfactory to such Indemnified Party at the sole cost and expense of the Indemnitor (including reasonable attorney's and expert's fees and expenses and court and arbitration costs), will notify the Indemnitor of the progress of any such Third Party Claim, will permit the Indemnitor, at the sole cost of the Indemnitor, to participate in orsuch prosecution or defense and will provide the Indemnitor with reasonable access to all relevant information and documentation relating to the Third Party Claim and the prosecution or defense thereof. In any case, if it so elects, to assume the party not in control of the Third Party Claim will cooperate with the other party in the conduct of the prosecution or defense of such claimThird Party Claim. Notwithstanding the foregoing, if an Indemnified Party is offered a written settlement proposal 37 38 by a third party that has as its sole component the payment of money by the Indemnified Party and the Indemnitor recommends to the Indemnified Party in writing that it accept such settlement proposal (the "SANCTIONED SETTLEMENT") and the Indemnified Party shall cooperate fully with refuses to accept such settlement proposal, in such event if the Indemnifying Party, subject ultimate settlement terms agreed to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as with such third party or the result of final monetary damages award against the Indemnified Party (either, a request by "FINAL SETTLEMENT AMOUNT"), is greater than the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control amount of the defense of any third-party claimSanctioned Settlement, the Indemnified Party shall have be responsible for the right differential between the Final Settlement Amount and the Sanctioned Settlement and the Indemnitor's liability shall be limited to participate the amount specified in the defense of such claim at its own expenseSanctioned Settlement.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
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Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates or demand is made against Purchaser, AudioCodes or the Company (either referred to an action, suitin this Article as "Indemnitee"), or proceeding filed if an Indemnitee shall otherwise learn of an assertion, by any Person who is not a third party against to this Agreement (and who is not an Affiliate of a party to this Agreement) (a "Third Party Claim") as to which Seller (the Indemnified Party "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such notice shall be given by the Indemnified Party to Indemnitee will notify the Indemnifying Party within ten (10) days in writing, and in reasonable detail, of the Third Party Claim in a prompt manner a reasonable amount of time after written notice becoming aware of such actionThird Party Claim; provided, suithowever, or proceeding that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure; provided, further, however, that in any event, such notification must be given within the particular survival period noted in Section 9.1 above to the Indemnified Partybe eligible for indemnification.
(b) Following receipt of notice from the Indemnified If a Third Party of a claimClaim is made against an Indemnitee, the Indemnifying Party shall have thirty will be entitled to assume the defense thereof (30) days in which to make such investigation at the expense of the claim Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party shall deem necessary or desirable. For the purposes diligently conducts such defense; provided that, if a conflict of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount interest exists in respect of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall Indemnitee will have the right at its own expense to participate employ separate counsel to represent such Indemnitee and in or, if it so elects, to assume control of that event the defense reasonable fees and expenses of such claim, and the Indemnified Party shall cooperate fully with the separate counsel will be paid by such Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall Each Indemnitee will have the right to participate in the defense of such claim thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for the reasonable fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. The Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). All the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof if requested by the Indemnifying Party (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Indemnifying Party will not consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent which will not be unreasonably withheld.
(d) If Any claim on account of Damages which does not involve a claim, whether between Third Party Claim shall be asserted by written notice given by the parties or Indemnitee to the Indemnifying Party. The failure by a third party, requires immediate action, the parties will make all reasonable efforts any Indemnitee so to reach a decision with respect thereto as expeditiously as possible.
(e) If notify the Indemnifying Party does will not elect relieve the Indemnifying Party from any liability which it may have to assume control or otherwise participate in such Indemnitee under this Agreement, except to the defense of any third-party claim, extent that the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to have demonstrated that it has been actually prejudiced as a result of such claimfailure.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
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Procedures for Indemnification. The procedures for If an Indemnified Party intends to seek indemnification shall be as follows:
(a) The party claiming the indemnification (the “pursuant to this Article IV, such Indemnified Party”) Party shall promptly give provide written notice to the party from whom the indemnification is claimed being sought (the “Indemnifying Party”) ), in writing in accordance with Section 7.1 of such claim describing such claim in reasonable detail including the sections of this Agreement which form the basis for such claim, copies of all material written evidence thereof and the estimated amount of the Indemnifiable Losses that have been or may be sustained by the Indemnified Party; provided, that the failure to provide such notice shall only affect the obligations of the Indemnifying Party unless and to the extent it is actually materially prejudiced thereby. In particular, in case of any investigation or audit for which indemnification of an Indemnified Party under this Article IV is reasonably likely, such Indemnified Party shall inform the Indemnifying Party at the commencement of such investigation or audit, to the extent practical, so that the Indemnifying Party may participate therein. In the event that such claim whether between the parties or brought involves a claim by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) 20 days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes after receipt of such investigationnotice to decide whether it will undertake, conduct and control, through counsel of its own choosing and at its own expense, the settlement or defense thereof, and if it so decides, the Indemnified Party agrees to make available to shall cooperate with the Indemnifying Party and/or its authorized representative(s) in connection with the information relied upon settlement or defense of such claim; provided, however, that the Indemnified Party may participate in such settlement or defense through counsel chosen by it; provided, further, that the fees and expenses of such counsel shall be borne by the Indemnified Party; provided, further, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the reasonable judgment of the Indemnified Party for the same counsel to substantiate the claim. If represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party agree shall be entitled to retain one law firm at or prior the Indemnifying Party’s expense. Notwithstanding anything in this Section 4.4 to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such noticecontrary, the Indemnifying Party shall immediately pay may, without the consent of the Indemnified Party, settle or compromise any action or consent to the entry of any judgment which is solely for money damages, which includes as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification a duly executed written release of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled from all liability in respect of such action, which release shall be reasonably satisfactory in form and substance to indemnification hereundercounsel for the Indemnified Party, and which does not involve an admission of guilt or liability. So long as the Indemnifying Party shall have has agreed to undertake, conduct and control the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the settlement or defense of any third-party claimsuch claim and is contesting any such claim in good faith, the Indemnified Party shall have the right to participate in the defense of not pay or settle any such claim at its own expense.
(d) If a claim, whether between without the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If written consent of the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties which consent shall not be made by and through the Indemnified Partyunreasonably withheld or delayed.
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification shall pursuant to this Article 8 will be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give written notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim for Losses, whether arising between the parties or brought by in connection with a third third-party claim made against the Indemnified Party, specifying (i) specifying, in reasonable detail, the factual facts and circumstances of and the basis for such claim, and (ii) as then known by the amount of the claimIndemnified Party. If a an indemnification claim hereunder relates to an action, suit, or proceeding filed by a third third-party claim made against the Indemnified Party Party, written notice of such notice third-party claim shall be given by the Indemnified Party to the Indemnifying Party promptly (but in any event within ten fifteen (1015) days after written notice of such action, suit, or proceeding third-party claim shall have been given to the Indemnified Party by such third party). Failure to give prompt notice pursuant to this Section 8.4(a) shall not affect the Indemnifying Party’s indemnification obligations hereunder in the absence of material prejudice thereto (in which case the Indemnifying Party’s indemnification obligations shall only be reduced to the extent of such material prejudice).
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall will have thirty (30) days in during which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its the Indemnifying Party’s authorized representative(sRepresentative(s) the information relied upon by the Indemnified Party to substantiate the claimclaim (except to the extent such information is privileged). If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said H:818672 48 thirty (30) day 30)-day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately promptly pay to the Indemnified Party the full amount of the claim; providedclaim in accordance with Section 8.4(f). In the event the parties are unable to agree, that the amount held either party may bring a Proceeding to resolve such dispute in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is)accordance with Section 9.10.
(c) With respect to any claim by a third third-party as to for which the an Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right right, at its own expense expense, to participate in or, if it the Indemnifying Party so elects, to assume control of the defense of such claimclaim through counsel of the Indemnifying Party’s choice reasonably acceptable to the Indemnified Party by providing written notice within thirty (30) days following notice from the Indemnified Party acknowledging the Indemnifying Party’s obligation to indemnify the Indemnified Party, and the Indemnified Party shall reasonably cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable and documented actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate; provided, that the Indemnifying Party will not be entitled to control, and the Indemnified Party will be entitled to have sole control over, the defense or settlement of any claim if (i) such claim involves a criminal proceeding, action, indictment, allegation or investigation, (ii) a conflict of interest between the Indemnifying Party and the Indemnified Party exists other than ordinary conflicts that arise under this Agreement and the other Transaction Documents, (iii) such claim involves any customers of the Indemnified Party or its Affiliates, (iv) the Indemnifying Party has not agreed and acknowledged in writing (for the benefit of the Indemnified Party) its unqualified obligation to indemnify the Indemnified Party as provided hereunder with respect to such claim, subject to the limitations set forth in this Article 8, (vi) such claim seeks an injunction or other equitable relief against the Indemnified Party or any of its Affiliates or (vii) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall will have the right to participate in the defense of such claim at its own expense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party (such consent not to be unreasonably denied, delayed, withheld or conditioned), settle, compromise or offer to settle or compromise any such claim or demand on a basis which would result in the imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the Indemnified Party or any of its Affiliates or if such settlement or compromise does not include an unconditional release of the Indemnified Party for any liability arising out of such claim or demand or any related claim or demand.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim within thirty (30) days following notice from the Indemnified Party (or such earlier date, if the failure to assume the defense on such earlier date would materially impair the ability of the Indemnified Party to defend such claim), the Indemnified Party will (upon delivering written notice to such effect to the Indemnifying Party) have the right to undertake the defense, compromise or settlement of such claim (all at the cost and expense of the Indemnifying Party), and the Indemnifying Party shall will be bound by the results obtained in good faith by the Indemnified Party with respect to such claim. The Indemnified Party will not settle, compromise or offer to settle or compromise any such claim or demand on a basis which would result in the imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the Indemnifying Party without the consent of the Indemnifying Party, such consent not to be unreasonably withheld, denied, conditioned or delayed.
(e) If any Buyer Group Member is entitled to recourse directly against any Seller pursuant to this Article 8 and is not able to recover the full amount of any such claim from such Seller, Buyers shall have the right to: H:818672 49
(i) if no Earn-Out Consideration has been paid, then withhold any Earn-Out Consideration that becomes due, including the issuance of a number of Earn-Out Shares having an aggregate Earn-Out Share Value equal to the amount that such Buyer Group Member was unable to recover. Each Seller hereby agrees to any such withholding of Earn-Out Consideration from such Seller in satisfaction of any indemnification obligations hereunder; or
(ii) if any Earn-Out Shares have been issued, demand from such Seller the satisfaction of such claim through the delivery to Buyers of a number of Earn-Out Shares held by such Seller having an aggregate Earn-Out Share Value equal to the amount that such Buyer Group Member was unable to recover. Each Seller hereby agrees to any such delivery of Earn-Out Shares from such Seller to Buyers in satisfaction of any indemnification obligations hereunder and authorizes Buyers to transfer such Earn-Out Shares to Buyers or any of their Affiliates. Notwithstanding the foregoing, if a Seller fails to deliver such Earn-Out Shares in satisfaction of any indemnification obligations hereunder, without any further action by ▇▇▇▇▇▇, such Seller shall automatically forfeit all of such Seller’s rights, title and interest in and with respect to such Earn-Out Shares, and Buyers shall be deemed the owner of such Earn-Out Shares for all purposes, and Buyers agree to provide such Seller with written notice thereof promptly after any such forfeiture.
(f) The Any indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend payments made pursuant to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties Article 8 shall be made effected by and through wire transfer of immediately available funds to an account or accounts designated by the Indemnified Partyapplicable Buyer Group Member or Seller Group Member, as the case may be, within three (3) Business Days after the determination thereof, whether pursuant to a final judgment, settlement or agreement among the parties.
Appears in 1 contract
Procedures for Indemnification. The procedures Promptly after receipt by an indemnified party under Section 10.01 or 10.02 of notice of the commencement of any action for which indemnification shall may be as follows:
(a) The available under Section 10.01 or 10.02, such indemnified party claiming the indemnification (the “Indemnified Party”) shall promptly shall, if a claim in respect thereof is to be made against an indemnifying party under such action, give notice to the indemnifying party from whom of the indemnification is claimed (commencement thereof, but the “Indemnifying Party”) failure to so notify the indemnifying party shall not relieve it of any claim whether between liability that it may have to any indemnified party except to the extent the indemnifying party demonstrates that the defense of such action is prejudiced thereby. In case any such action shall be brought against an indemnified party and it shall give notice to the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall elect, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such section for any fees of other counsel or any other expenses, in each case subsequently incurred by such indemnified party in connection with the defense thereof, other than reasonable costs of investigation and costs and expenses of legal counsel, if the indemnified party and the indemnifying party are both parties to the action and the indemnified party has been advised by counsel that there may be one or brought more defenses available to it and not available to the indemnifying party. If an indemnifying party assumes the defense of such an action (a) no compromise or settlement thereof may be effected by a third the indemnifying party against without the Indemnified Party, specifying indemnified party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law or any violation of the factual basis for such claim, rights of any person and no effect on any other claims that may be made against the indemnified party and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given sole relief provided is monetary damages that are paid in full by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
indemnifying party and (b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party indemnifying party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With no liability with respect to any claim by a third compromise or settlement thereof effected without its consent (which shall not be unreasonably withheld). If notice is given to an indemnifying party as of the commencement of any action and it does not, within ten days after the indemnified party's notice is given, give notice to which the Indemnified Party is entitled indemnified party of its election to indemnification hereunderassume the defense thereof, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-indemnifying party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by any determination made in such action or any compromise or settlement thereof effected by the results obtained indemnified party. Notwithstanding the foregoing, if an indemnified party determines in good faith by the Indemnified Party with respect to that there is a reasonable probability that an action may materially and adversely affect it or its affiliates other than as a result of monetary damages, such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.indemnified
Appears in 1 contract
Procedures for Indemnification. The procedures Party or other indemnified Person making a claim for indemnification under this Article 9 is referred to as the “Indemnified Party” and the Party providing indemnification is referred to as the “Indemnifying Party” for the purposes of this Article. The following provisions shall apply to any Claims for which an Indemnifying Party may be as followsobligated to indemnify an Indemnified Party pursuant to this Agreement:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give notice to the party upon receipt from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party of notice of a claim or the Indemnified Party becoming aware of a claim in respect of which the Indemnified Party proposes to demand indemnification from the Indemnifying Party, the Indemnified Party shall give notice to that effect to the Indemnifying Party within ten (10) days after written with reasonable promptness, provided that failure to give such notice of such action, suit, or proceeding shall not relieve the Indemnifying Party from any liability it may have been given to the Indemnified Party.Party except to the extent that the Indemnifying Party is prejudiced thereby;
(b) Following receipt in the case of notice Claims arising from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunderparties, the Indemnifying Party shall have the right at its own expense by notice to participate the Indemnified Party not later than 30 days after receipt of the notice described in or, if it so elects, paragraph (a) above to assume the control of the defense defence, compromise or settlement of the claims, provided that such assumption shall, by its terms, be without costs to the Indemnified Party and the Indemnifying Party shall at the Indemnified Party’s request furnish it with reasonable security against any costs or other liabilities to which it may be or become exposed by reason of such claimdefence, and compromise or settlement;
(c) upon the assumption of control by the Indemnifying Party as aforesaid, the Indemnifying Party shall diligently proceed with the defence, compromise or settlement of the claims at its sole expense, including employment of counsel reasonably satisfactory to the Indemnified Party and, in connection therewith, the Indemnified Party shall cooperate fully with fully, but at the expense of the Indemnifying Party, subject to reimbursement make available to the Indemnifying Party all pertinent information and witnesses under the Indemnified Party’s control, make such assignments and take such other steps as in the opinion of counsel for the Indemnifying Party are necessary to enable the Indemnifying Party to conduct such defence; provided always that the Indemnified Party shall be entitled to reasonable actual out-of-pocket expense incurred security from the Indemnifying Party for any expense, costs or other liabilities to which it may be or may become exposed by reason of such cooperation;
(d) the final determination of any such claims arising from third parties, including all related costs and expenses, will be binding and conclusive upon the Parties as to the validity or invalidity, as the case may be, of such claims against the Indemnifying Party hereunder; and
(e) should the Indemnifying Party fail to give notice to the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claimprovided in paragraph (b) above, the Indemnified Party shall have be entitled to make such settlement of the right to participate claims as in its sole discretion may appear reasonably advisable, and such settlement or any other final determination of the defense of such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If claims shall be binding upon the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Sources: Business Combination Agreement
Procedures for Indemnification. The procedures Promptly after receipt by a Tejas Indemnified Party of written notice of the assertion or the commencement of any proceeding by a third-party with respect to any matter referred to in Section 8.01, the Tejas Indemnified Party shall give written notice thereof to the Holders, and thereafter shall keep the Holders reasonably informed with respect thereto; PROVIDED, HOWEVER, that failure of the Tejas Indemnified Party to give the Holders notice as provided herein shall not relieve the Holders of their obligations hereunder, except to the extent that the Holders are prejudiced thereby. A claim for indemnification shall for any matter not involving a third-party proceeding may be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give asserted by notice to the party from whom Holders and shall be paid promptly after such notice. If the indemnification is claimed (facts pertaining to a Loss arise out of the “Indemnifying Party”) claim of any third party, or if there is any claim whether between the parties or brought by against a third party against available by virtue of the circumstances of the Loss, the Holders may assume the defense or the prosecution thereof by prompt written notice to the Tejas Indemnified Party, specifying (i) including the factual basis for such claimemployment of counsel or accountants, at its sole cost and (ii) the amount of the claimexpense. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claimIn connection therewith, the Indemnifying Party Holders shall have thirty (30) days in which to make acknowledge that such investigation claim is the proper subject of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claimindemnification under Section 8.01; provided, however, that the amount held in escrow to secure Sellers’ indemnification of Buyer foregoing shall be paid in satisfaction of any claim payable not foreclose the Holders from taking the position that the Loss is governed by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperateSection 8.06 hereof. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the The Tejas Indemnified Party shall have the right to employ counsel separate from counsel employed by the Holders in any such action and to participate therein, but the fees and expenses of such counsel employed by the Tejas Indemnified Party shall be at its sole cost and expense. Neither the Holders nor the Tejas Indemnified Party shall be liable for any settlement of any such claim effected without their respective prior written consent, which shall not be unreasonably withheld; PROVIDED that if the Holders do not assume the defense or prosecution of a claim as provided above within thirty (30) days after notice thereof from the Tejas Indemnified Party, the Tejas Indemnified Party may settle such claim without the Holders' consent. Whether or not the Holders choose to so defend or prosecute such claim, all the parties hereto shall cooperate in the defense of or prosecution thereof and shall furnish such claim at its own expenserecords, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Sources: Merger Agreement (Tejas Inc)
Procedures for Indemnification. The procedures for If a claim or demand is made against any person who is entitled to indemnification hereunder (an "Indemnitee") by any person who is not a party, or an Affiliate of 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 be as follows:
notify the party obligated hereunder to indemnify such Indemnitee (athe "Indemnifying Party") The party claiming 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 (the “Indemnified Party”) shall promptly give notice provided hereunder except to the party from whom extent the indemnification is claimed 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 after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) of any claim whether between received by the parties or brought by a third party against Indemnitee relating to the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claimThird Party Claim. If a claim relates to Third Party Claim is made against an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claimIndemnitee, the Indemnifying Party shall have thirty (30) days be entitled to partici- ▇▇▇▇ in which the defense thereof and, if it so chooses and acknowledges in writing its obligation to make indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided that such investigation of counsel is not reasonably objected to by the claim as Indemnitee. Should the Indemnifying Party shall deem necessary or desirable. For so elect to assume the purposes defense of such investigation, the Indemnified a Third Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such noticeClaim, the Indemnifying Party shall immediately pay not be liable to the Indemnified Party Indemnitee for legal or other expenses subsequently incurred by the full amount Indemnitee in connection with the defense thereof; provided that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the reasonable judgment of the claim; provided, that Indemnitee for the amount held in escrow same counsel to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which represent both the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, Indemnitee and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject then the Indemnitee shall be entitled to reimbursement for reasonable actual out-of-pocket retain its own counsel, at the expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperateParty. If the Indemnifying Party elects to assume control of the defense of any third-party claimassumes such defense, the Indemnified Party Indemnitee shall have the right to participate in the defense of such claim 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 (d) If a claim, whether between other than during the parties or by a third party, requires immediate action, period prior to the parties will make all reasonable efforts to reach a decision with respect thereto time the Indemnitee shall have given notice of the Third Party Claim as expeditiously as possible.
(e) provided above). If the Indemnifying Party does not elect so elects to assume control or otherwise participate in the defense of any third-party claimThird 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; 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 in writing 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 and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee; provided, however, that all of the Indemnitees that are subject to the Third Party Claims that are to be settled, compromised or discharged may unanimously refuse to agree to any such settlement, compromise or discharge if each 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 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 bound by entitled to assume the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates defense of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Partyportion relating to money damages.
Appears in 1 contract
Sources: Partnership Interest Transfer Agreement (Itt Corp /Nv/)
Procedures for Indemnification. The procedures for Subject to Section 9.5 of this Agreement, a Party seeking indemnification shall be as follows:
(a) The party claiming the indemnification under this Article IX (the “"Indemnified Party”") shall promptly give notice to notify the party from Party against whom the a claim for indemnification is claimed sought under this Agreement (the “"Indemnifying Party”") of any claim whether between in writing, which notice shall specify, in reasonable detail, the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, nature and (ii) the estimated amount of the claim. If claim and shall include a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice complete and accurate copy of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expense.
(d) If a claim, whether between the parties complaint or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith other information received by the Indemnified Party with respect to such claim.
. If a claim by a third party is made against an Indemnified Party, and if the Indemnified Party intends to seek indemnity with respect thereto under this Article IX, the Indemnified Party shall promptly (fbut in no event longer than 30 days ("Indemnity Notice Period") The of such claim being made) notify the Indemnifying Party of such claim and the reasonable details thereof, including a complete and accurate copy of any notice, complaint or other information received by the Indemnified Party with respect to such claim; provided, however, that any failure by an Indemnified Party to notify the Indemnifying Party of a claim within the Indemnity Notice Period for such claim shall not affect the Indemnified Party's right to indemnification rights provided in Sections 12.2 under the Article IX except (and 12.3 hereof shall extend then only) to the shareholdersextent that the Indemnifying Party is actually prejudiced by such failure. The Indemnifying Party shall have 30 days after receipt of such notice to undertake, directorsconduct and control, officers through counsel of its own choosing and Affiliates at its expense, the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith, except that with respect to settlements entered into by the Indemnifying Party (i) the consent of the Indemnified Party shall be required if the settlement provides for equitable relief against, or otherwise adversely affects, the Indemnified Party, which consent shall not be unreasonably withheld or delayed; and (ii) the Indemnifying Party shall obtain a complete release of the Indemnified Party. If the Indemnifying Party undertakes, although for conducts and controls the purpose settlement or defense of such claim, the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by the Indemnified Party, provided that the fees and expenses of the procedures set forth in this Section 12.4, any indemnification claims by such parties Indemnified Party's counsel shall be made borne by and through the Indemnified Party.
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to an action, suitor demand is made against Purchaser, or proceeding filed if Purchaser shall otherwise learn of an assertion, by any person who is not a third party against the Indemnified to this Agreement (a “Third Party such notice shall be given by the Indemnified Party Claim”) as to which the Indemnifying Party within ten (10) days may be obligated to provide indemnification pursuant to this Agreement, Purchaser will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim in a prompt manner a reasonable amount of time after written notice becoming aware of such actionThird Party Claim; provided, suithowever, or proceeding that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been given to the Indemnified Partyactually prejudiced as a result of such failure.
(b) Following receipt of notice from the Indemnified If a Third Party of a claimClaim is made against Purchaser, the Indemnifying Party shall have thirty will be entitled to assume the defense thereof (30) days in which to make such investigation at the expense of the claim as Indemnifying Party) with counsel selected by the Indemnifying Party shall deem necessary or desirableand reasonably satisfactory to Purchaser. For the purposes of such investigation, the Indemnified Party agrees to make available to Should the Indemnifying Party and/or its authorized representative(s) so elect to assume the information relied upon by the Indemnified defense of a Third Party to substantiate the claim. If the Indemnified Party and Claim, the Indemnifying Party agree at will not be liable to Purchaser for any legal or prior other expenses subsequently incurred by Purchaser in connection with the defense thereof; provided that, if pursuant to the expiration an opinion of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount an independent legal counsel retained by both parties a conflict of interest exists in respect of such claim, or if Purchaser will have the right to employ separate counsel to represent Purchaser and in that event the reasonable fees and expenses of such separate counsel will be paid by Indemnifying Party. Purchaser will have the right to be involved in (but not to lead) the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for the reasonable fees and expenses of counsel employed by the Purchaser for any period during which the Indemnifying Party does not respond has failed to assume the defense thereof. The Indemnifying Party will keep Purchaser fully informed of all developments relating to or in connection with such notice, Third Party Claim. Purchaser will fully cooperate with the Indemnifying Party shall immediately pay in the defense thereof if requested by the Indemnifying Party (such cooperation to be at the Indemnified Party the full amount expense, including reasonable legal fees and expenses, of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it isIndemnifying Party).
(c) With respect Indemnifying Party will not consent to any claim by a third party as settlement, compromise or discharge (including the consent to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense entry of any third-party claim, judgment) of any Third Party Claim without the Indemnified Party shall have the right to participate in the defense of such claim at its own expensePurchaser ‘s prior written consent which will not be unreasonably withheld.
(d) If Any claim on account of Damages which does not involve a claim, whether between Third Party Claim shall be asserted by written notice given by the parties or by a third party, requires immediate action, the parties will make all reasonable efforts Purchaser to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in within the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures time period set forth in this Section 12.4, any indemnification claims above and reasonably supported by such parties shall be made by and through the Indemnified Partydocumentary evidence.
Appears in 1 contract
Sources: Series E Preferred Share Purchase Agreement (Audiocodes LTD)
Procedures for Indemnification. The procedures for indemnification shall pursuant to this Article 8 will be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim for Losses, whether arising between the parties or brought by in connection with a third third-party claim made against the Indemnified Party, specifying (i) specifying, in reasonable detail, the factual facts and circumstances of and the basis for such claim, and (ii) as then known by the amount of the claimIndemnified Party. If a an indemnification claim hereunder relates to an action, suit, or proceeding filed by a third third-party claim made against the Indemnified Party Party, notice of such notice third party claim shall be given by the Indemnified Party to the Indemnifying Party promptly (but in any event within ten fifteen (1015) days after written notice of such action, suit, or proceeding third party claim shall have been given to the Indemnified Party by such third party). Failure to give prompt notice pursuant to this Section 8.4(a) shall not affect the Indemnifying Party’s indemnification obligations hereunder in the absence of material prejudice thereto (in H:836720 49 which case the Indemnifying Party’s indemnification obligations shall only be reduced to the extent of such material prejudice).
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall will have thirty forty-five (3045) days in during which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its the Indemnifying Party’s authorized representative(sRepresentative(s) the information relied upon by the Indemnified Party to substantiate the claimclaim (except to the extent such information is privileged). If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty forty-five (30) day 45)-day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; providedclaim in accordance with Section 8.4(f). In the event the parties are unable to agree, that the amount held either party may bring a Proceeding to resolve such dispute in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is)accordance with Section 9.9.
(c) With respect to any claim by a third party as to for which the an Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right right, at its own expense expense, to participate in or, if it the Indemnifying Party so elects, to assume control of the defense of such claimclaim through counsel of the Indemnifying Party’s choice reasonably acceptable to the Indemnified Party by providing written notice within forty-five (45) days following notice from the Indemnified Party acknowledging the Indemnifying Party’s obligation to indemnify the Indemnified Party, and the Indemnified Party shall reasonably cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable and documented actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate; provided, that the Indemnifying Party will not be entitled to control, and the Indemnified Party will be entitled to have sole control over, the defense or settlement of any claim if (i) such claim involves a criminal proceeding, action, indictment, allegation or investigation, (ii) a conflict of interest between the Indemnifying Party and the Indemnified Party exists other than ordinary conflicts that arise under this Agreement and the other Transaction Documents, (iii) such claim involves any customers of the Indemnified Party or its Affiliates, (iv) the Indemnifying Party has not agreed and acknowledged in writing (for the benefit of the Indemnified Party) its unqualified obligation to indemnify the Indemnified Party as provided hereunder with respect to such claim, subject to the limitations set forth in this Article 8, (vi) such claim seeks an injunction or other equitable relief against the Indemnified Party or any of its Affiliates or (vii) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall will have the right to participate in the defense of such claim at its own expense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party (such consent not to be unreasonably delayed, withheld or conditioned), settle, compromise or offer to settle or compromise any such claim or demand on a basis which would result in the imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the Indemnified Party or any of its Affiliates or if such settlement or compromise does not include an unconditional release of the Indemnified Party for any liability arising out of such claim or demand or any related claim or demand.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim within forty-five (45) days following notice from the Indemnified Party (or such earlier date, if the failure to assume the defense on such earlier date would materially impair the ability of the Indemnified Party to defend such claim), the Indemnified Party will (upon delivering written notice to such effect to the Indemnifying Party) have the right to undertake the defense, compromise or settlement of such claim (all at the cost and expense of the Indemnifying Party), and the Indemnifying Party shall will be bound by the H:836720 50 results obtained in good faith by the Indemnified Party with respect to such claim. The Indemnified Party will not settle, compromise or offer to settle or compromise any such claim or demand on a basis which would result in the imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the Indemnifying Party without the consent of the Indemnifying Party, such consent not to be unreasonably withheld or delayed.
(e) If any Buyer Group Member is entitled to recourse directly against any Seller pursuant to this Article 8 and is not able to recover the full amount of any such claim from such Seller, Buyer shall have the right to demand from such Seller the satisfaction of such claim through the delivery to Buyer of a number of Rollover Shares held by such Seller having an aggregate Rollover Share Value equal to the amount that such Buyer Group Member was unable to recover. Each Seller hereby agrees to any such delivery of Rollover Shares from such Seller to Buyer in satisfaction of any indemnification obligations hereunder and authorizes Buyer to transfer such Rollover Shares to Buyer or any of its Affiliates. Notwithstanding the foregoing, if a Seller fails to deliver such Rollover Shares in satisfaction of any indemnification obligations hereunder, without any further action by ▇▇▇▇▇, such Seller shall automatically forfeit all of such Sellers’ rights, title and interest in and with respect to such Rollover Shares, and Buyer shall be deemed the owner of such Rollover Shares for all purposes, and ▇▇▇▇▇ agrees to provide such Seller with written notice thereof promptly after any such forfeiture.
(f) The Any indemnification rights provided in Sections 12.2 and 12.3 hereof payments made by Buyer pursuant to this Article 8 shall extend be effected by wire transfer of immediately available funds to an account or accounts designated by the Seller Group Member within three (3) Business Days after the determination thereof, whether pursuant to a final judgment, settlement or agreement among the parties. All indemnification payments by a Seller Group Member shall be satisfied through the delivery to the shareholders, directors, officers and Affiliates Buyer Group Member of the Indemnified Party, although for the purpose a number of the procedures set forth in this Section 12.4, any indemnification claims Rollover Shares held by such parties shall be made by and through Seller having an aggregate Rollover Share Value equal to the Indemnified Partyamount of such indemnification obligation three (3) Business Days after the determination thereof, whether pursuant to a final judgment, settlement or agreement among the parties.
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification (i) If an Indemnitee shall be as follows:
(a) The party claiming receive notice or otherwise learn of the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) assertion of any claim whether between the parties or brought commencement of any proceeding (including any governmental investigation) by a third person who is not a party against to this Agreement (or any Affiliate of either party) (a "Third-Party Claim") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee shall give such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim setting forth the Indemnified particulars as to such claim or proceeding in reasonable detail; provided that the failure of any Indemnitee to give notice as provided in this Section 4.4(a) shall not relieve the related Indemnifying Party of its obligations under this Article IV, unless such Indemnifying Party is actually prejudiced by such failure to give notice and then only to the extent of such actual prejudice.
(ii) An Indemnifying Party may, to the extent it wishes within thirty days of receipt of notice of a Third Party claim and at its cost and expense, elect to defend or to seek to settle or compromise any Third-Party Claim; provided that the Indemnitee may participate in such settlement or defense through its chosen counsel at its sole cost and expense. After notice from an Indemnifying Party to an Indemnitee of its election to assume the defense of a Third-Party Claim, such Indemnifying Party shall not be liable to such Indemnitee under this Article IV for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by such Indemnitee in connection with the defense thereof; provided that if the defendants in any such Third-Party Claim include both the Indemnifying Party and one or more Indemnitees and in any Indemnitee's reasonable judgment a conflict of interest between one or more of such Indemnitees and such Indemnifying Party exists in respect of such claim, such Indemnitees shall have the right to employ separate counsel to represent such Indemnitees and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by such Indemnifying Party; provided further if and to the extent that there is a conflict of defenses or positions among the Indemnitees, the Indemnitees shall have the right to retain such number of additional separate counsel, reasonably satisfactory to the Indemnifying Party, specifying as is reasonably necessary to avoid such conflicts, and the Indemnifying Party shall be responsible for the reasonable fees and expenses of such additional separate counsel; provided further that the Indemnitee may participate in the settlement or defense of a Third-Party Claim through counsel chosen by such Indemnitee if the fees and expenses of such counsel shall be borne by such Indemnitee. If an Indemnifying Party elects not to assume responsibility for defending a Third-Party Claim, such Indemnitee may defend or seek to compromise or settle such Third-Party Claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. Notwithstanding the foregoing, the Indemnifying Party shall not be liable for any settlement of any Third-Party Claim effected without its written consent. The Indemnifying Party shall not, except with the consent of the Indemnitee, (i) enter into any such settlement that does not include as an unconditional term thereof the factual basis for giving by the person or persons asserting such claimThird-Party Claim to all Indemnitees an unconditional release from all Liability with respect to such Third-Party Claim, and or (ii) the amount consent to entry of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Partyany judgment.
(b) Following receipt of notice from the Indemnified Party Any claim on account of a claim, Loss that does not result from a Third-Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party. Such Indemnifying Party shall have a period of thirty (30) days in after the receipt of such notice within which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claimrespond thereto. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to within such noticethirty-day period, the such Indemnifying Party shall immediately pay be deemed to the Indemnified have refused to accept responsibility to make payment. If such Indemnifying Party the full amount of the claim; provideddoes not respond within such thirty-day period or rejects such claim in whole or in part, that the amount held in escrow to secure Sellers’ indemnification of Buyer such Indemnitee shall be paid free to pursue such remedies as may be available to such party under this Agreement or under applicable law (except as provided in satisfaction of any claim payable by Sellers until that amount is exhausted (if it isthe ADR Agreement).
(c) With respect In addition to any claim adjustments required pursuant to Section 4.3, if the amount of any Loss shall, at any time subsequent to the payment required by a third party as to which the Indemnified Party is entitled to indemnification hereunderthis Agreement, be reduced by recovery, settlement or otherwise, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense amount of such claimreduction that has been received by the Indemnitee, and less any expenses properly incurred in connection therewith, shall promptly be repaid by the Indemnified Party shall cooperate fully with Indemnitee to the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expense.
(d) If In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall have all rights of subrogation and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim or against any other person. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If Notwithstanding anything to the Indemnifying Party does not elect to assume control contrary herein or otherwise participate in the defense of any third-party claimOther Agreements, the Indemnifying Party foregoing indemnification provisions and procedures shall be bound by apply to any other indemnification agreements herein or in the results obtained in good faith by the Indemnified Party with respect to such claimOther Agreements.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Sources: Distribution Agreement (Consolidated Freightways Inc)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the Any Person making a claim for indemnification (the under this ARTICLE VI is referred to herein as an “Indemnified Party”) shall promptly give notice to the party . The Person from whom the indemnification is claimed (sought is referred to herein as the “Indemnifying Party”) . Promptly after receiving notice of any Proceeding, investigation, demand or other claim whether between against the parties or brought Indemnified Party by a third party (a “Third Party Claim”), the Indemnified Party shall provide written notice of such claim (any such written notice, an “Indemnification Notice”) to: (i) the Purchaser subject to the indemnification claim, if the Third Party Claim arises under Section 6.2 and (ii) the Sellers’ Representative, if the Third Party Claim arises under Section 6.3. Each such Indemnification Notice shall describe in reasonable detail the applicable Third Party Claim, including the facts giving rise to such claim for indemnification hereunder, the amount or method of computation of the amount of such claim (if known); provided, that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party is actually prejudiced by such failure. The Indemnified Party shall also provide such other information with respect thereto as the Indemnifying Party may reasonably request.
(b) Any Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim at such Indemnifying Party’s expense, and at its option shall be entitled to assume the defense thereof within twenty (20) Business Days after receipt of the Indemnification Notice if the Indemnifying Party acknowledges in writing the Indemnifying Party’s obligation to indemnify the Indemnified Party against any Losses that may result from such Third Party Claim and by appointing a reputable counsel reasonably acceptable to the Indemnified Party to be the lead counsel in connection with such defense; provided, that the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, that the fees and expenses of such separate counsel shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this ARTICLE VI. Notwithstanding the foregoing, if the Indemnified Party shall have determined in good faith, and upon advice of counsel, that an actual conflict of interest makes representation of the Indemnifying Party and the Indemnified Party by the same counsel inappropriate, then the Indemnified Party may, upon notice to the Indemnifying Party, engage separate counsel, and the reasonable fees and expenses of such separate counsel shall be borne by the Indemnifying Party to the extent the Third Party Claim is indemnifiable hereunder.
(c) Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of the Third Party Claim, unless the Indemnifying Party consents in writing to such payment. Notwithstanding anything to the contrary herein, the Indemnifying Party shall not compromise or settle, or admit any Liability with respect to, any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), unless the relief (i) is not in respect of a Third Party Claim for Taxes, (ii) consists solely of money damages (all of which the Indemnifying Party shall pay) and (iii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto; provided, however, that if the Indemnified Party fails to consent to such settlement or compromise and such settlement or compromise does not include injunctive relief, the Liability of the Indemnifying Party with respect to such Third Party Claim under this Agreement shall be limited to the amount that would have otherwise been payable had the Indemnifying Party entered into such settlement or compromise. The party assuming the defense of such claim shall provide the other party with updates and information regarding the proceedings, as well as any settlement proposals made. In the event that the Indemnified Party assumes the defense of any Third Party Claim, the Indemnifying Party shall be entitled to request the Indemnified Party to accept any settlement proposed by or agreed upon by the applicable third party, as long as such settlement is entirely monetary and the Indemnifying Party is willing to provide full indemnification in connection thereto.
(d) In all cases, the Indemnified Party shall provide its reasonable cooperation with the Indemnifying Party in defense of claims or litigation relating to Third Party Claims, including by making employees, information and documentation reasonably available. If the Indemnifying Party shall not, within twenty (20) Business Days of receiving the Indemnification Notice, notify the Indemnified Party that it shall assume the defense of any such Third Party Claim, or fails to defend or withdraws from the defense of any such Third Party Claim or the Indemnifying Party is any Seller and the claim(s) relate to or arise in connection with any Purchaser Defensible Matter, the Indemnified Party may defend against such matter in a manner consistent with the above provisions regarding conduct of the defense by the Indemnified Party; provided, that the Indemnified Party may not settle any such matter without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed). Any of following shall constitute a “Purchaser Defensible Matter”: (i) the claim for indemnification relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation, (ii) the Indemnified Party reasonably believes an adverse determination with respect to the Third Party Claim would be materially detrimental to or materially injure the Indemnified Party’s reputation or future business prospects, (iii) the claim seeks an injunction or equitable relief against the Indemnified Party, specifying (iv) the Indemnified Party has been advised by counsel to the effect that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party or (v) the estimated Loss is less than (and would not cause the aggregate of all Losses to exceed) the Basket Amount.
(e) The Indemnified Party shall provide written notice of claim that is not a Third Party Claim to: (i) the factual basis for such Purchaser subject to the indemnification claim, if such claim arises under Section 6.2 and (ii) the Sellers’ Representative, if such claim arises under Section 6.3. Such claim shall describe in reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount or method of computation of the amount of such claim (if known); provided, that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that (and only to the extent that) the Indemnifying Party is materially prejudiced by such failure. The Indemnified Party shall also provide such other information with respect thereto as the Indemnifying Party may reasonably request.
(f) In the event that the Indemnifying Party does not notify the Indemnified Party that it disputes either a Third Party Claim or another claim within thirty (30) days from receipt of the claim notice, the Indemnifying Party will be deemed to have acknowledged liability for such claim and the Sellers shall promptly pay such claim. If a claim relates to an actionthe Indemnifying Party disputes the validity or amount of any such claim, suit, or proceeding filed by a third party against the Indemnifying Party shall so notify the Indemnified Party such in writing within thirty (30) days after receipt of the claim notice shall be given by specifying in reasonable detail the points of disagreement. If any dispute is not resolved within thirty (30) days after the Indemnified Party receives a dispute notice, then either of such parties can initiate an action pursuant to Section 7.10; provided however, that, unless the applicable Indemnified Party initiates legal proceedings pursuant to such claim (whether a Third Party Claim or otherwise) within 90 days following the receipt of a dispute notice, such claim shall be deemed as if determined in favor of the Indemnifying Party Party.
(g) Subject to this ARTICLE VI, within ten (10) days after written notice of such actionany final decision, suit, judgment or proceeding award shall have been given to rendered by a Governmental Authority with competent jurisdiction (and a resolution of any appeal therefrom and the Indemnified Party.
(b) Following receipt expiration of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days time in which to make such investigation of the claim as the Indemnifying Party appeal therefrom), or a settlement shall deem necessary have been consummated, or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree shall have arrived at a mutually binding agreement, in each case, with respect to a claim hereunder (i) if the claim for indemnification was brought pursuant to Section 6.2, the indemnifying Purchaser shall pay or prior cause to be paid all sums due and owing to the expiration of said thirty Seller Indemnified Party in immediately available funds to an account specified by the Seller Indemnified Party and (30ii) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond claim for indemnification was brought pursuant to such noticeSection 6.3, the Indemnifying Party shall immediately pay or cause to be paid all sums due and owing to the Purchaser Indemnified Party in immediately available funds to an account specified by the full amount Purchaser Indemnified Party (all subject to the other provisions of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it isthis ARTICLE VI).
(ch) With respect Notwithstanding anything to any claim by the contrary in this Section 6.6, in the event that a third party as to which the Purchaser Indemnified Party brings a claim for indemnification under Section 6.3(iii) and such claim relates to the breach of a representation or warranty or covenants by one Seller (a “Solo Shareholder Claim”), then, solely for purposes of this ARTICLE VI, (i) only the Seller that is entitled subject to indemnification hereunder, such Solo Shareholder Claim (the Indemnifying Party “Solo Shareholder”) shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the be considered a Seller Indemnifying Party, subject to reimbursement and (ii) the Solo Shareholder shall serve the role of Sellers’ Representative for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control purposes of the defense of any third-party claimSolo Shareholder Claim under this ARTICLE VI, the Indemnified Party shall have the right to participate in the defense of such claim at its own expense.
mutatis mutandis (d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Partyforegoing, although for the purpose without derogating from any other provision of the procedures set forth in this Section 12.4, any indemnification claims by such parties ARTICLE VI which shall be made by and through the Indemnified Partyapply mutatis mutandis).
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The If there occurs an event that any party claiming asserts is an indemnifiable event pursuant to Section 4.1 and 4.2, the party seeking indemnification (the “Indemnified PartyIndemnitee”) shall promptly give provide notice (the “Notice of Claim”) to the party from whom the other Party obligated to provide indemnification is claimed (the “Indemnifying Party”) ). Providing the Notice of Claim shall be a condition precedent to any claim whether between Liability of the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claimIndemnifying Party hereunder, and (ii) the amount failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the claimextent that such failure prejudices the Indemnifying Party hereunder. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party In case any such notice action shall be given by the Indemnified Party brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party within ten (10) days of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after written notice from the Indemnifying Party to such Indemnitee of such actionelection so to assume the defense thereof, suitthe Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, or proceeding in each case subsequently incurred by the Indemnitee, in connection with the defense thereof; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have been given the right to defend, at the Indemnified sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, if the Indemnifying Party wishes to assume the defense of such asserted liability, the Indemnitee shall have the right to participate (but not control) at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in (but not control), conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Following Upon receipt of notice from the Indemnified Party a Notice of a claimClaim, the Indemnifying Party shall have thirty twenty (3020) calendar days in which (or such shorter period as may be appropriate under the circumstances) to make contest its indemnification obligation with respect to such investigation claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available Claim is submitted to the Indemnifying Party and/or its authorized representative(sthe amount of the Loss in respect thereof has not yet been determined, such twenty (20) day period in respect of, but only in respect of the information relied upon amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnified Party Indemnitee to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to setting forth the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or if bases for the objection of the Indemnifying Party does not respond to such noticethe claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall immediately pay be promptly paid over to the Indemnified Indemnitee. If no such Contest Notice is given within such twenty (20) day period, the obligation of the Indemnifying Party to pay the full Indemnitee the amount of the claim; providedLoss set forth in the Notice of Claim, that the amount held in escrow to secure Sellers’ indemnification or subsequent Notice of Buyer Liability, shall be paid in satisfaction deemed established and accepted by the Indemnifying Party subject to the terms and conditions of any claim payable by Sellers until that amount is exhausted (if it is)this Article IV.
(c) With respect If the Indemnifying Party fails to any claim by a third party as assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails to which reasonably contest such Claim in good faith, the Indemnified Party is entitled Indemnitee, without waiving its right to indemnification hereunderindemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall have be permitted to join in the right defense and settlement of such Claim and to employ counsel at its own expense to participate in orexpense, if it so elects, to assume control of (ii) the defense of such claim, and the Indemnified Indemnifying Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate Indemnitee in the defense of such claim at its own expenseClaim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the The Indemnifying Party does shall make any payment required to be made under this Article in cash when bills are received or expenses are incurred. Any payments required to be paid by an Indemnifying Party under this Article that are not elect to assume control or otherwise participate in paid within fifteen (15) business days of the defense of any third-party claimdate on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend pay to the shareholdersIndemnitee, directorsimmediately upon demand, officers and Affiliates interest at the rate of ten percent (10%) per annum, not to exceed the maximum non-usurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified PartyIndemnitee.
Appears in 1 contract
Procedures for Indemnification. The procedures Whenever a claim shall arise for indemnification under this Article 11, except as otherwise provided in Section 11.4, the parties shall be proceed as follows:
(a) provided as set forth in this Section 11.3. The party claiming the entitled to indemnification (the “Indemnified Party”) shall promptly give notice to notify the party from whom the which indemnification is claimed sought (the “Indemnifying Party”) of such claim and, when known, the facts constituting the basis for such claim; provided, however, that in the event of any claim whether between the parties for indemnification hereunder resulting from or brought in connection with any claim or Legal Proceeding by a third party against the Indemnified Party(a “Third Party Claim”), specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party shall give such notice shall be given by the Indemnified Party thereof to the Indemnifying Party not later than ten Business Days prior to the time any response to the Third Party Claim is required, and in any event within ten (10) days after five Business Days following receipt of notice thereof. In the event of any such Third Party Claim, the Indemnifying Party may, at its sole cost and expense, assume the defense of the Third Party Claim by written notice of such actionwithin 30 calendar days, suit, or proceeding shall have been given using counsel that is reasonably satisfactory to the Indemnified Party.
(b) Following receipt . The failure of an Indemnified Party to give timely notice from shall not affect the right to indemnification of the Indemnified Party except to the extent that the Indemnifying Party demonstrates actual prejudice. If an Indemnifying Party assumes the defense of a claimany such Third Party Claim, the Indemnifying Party shall have thirty (30) days be entitled to take all steps necessary in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigationdefense thereof, including any settlement; provided, however, that the Indemnified Party agrees may, at its own expense, participate in any Legal Proceeding with respect to make available to such Third Party Claim with counsel of its choice without any right of control thereof. The Indemnifying Party, if it has assumed the Indemnifying defense of any Third Party and/or its authorized representative(sClaim as provided herein, shall not, however: (i) consent to, or enter into, any compromise or settlement of the information relied upon by Third Party Claim which commits the Indemnified Party to substantiate the claim. If take, or to forbear from taking, any action or does not provide for a full and complete written release by such third party of the Indemnified Party, or (ii) consent to the entry of any judgment in any Legal Proceeding that does not relate solely to monetary damages arising from the Third Party and Claim, in any such case, without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any Third Party Claim in respect of which indemnity is sought pursuant to this Article 11, including, but not limited to, by providing the other party with the Indemnifying Party, subject reasonable access to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party employees and officers (including as the result of a request by witnesses) and other information. So long as the Indemnifying Party to so cooperate. If the Indemnifying is in good faith defending any Third Party elects to assume control of the defense of any third-party claimClaim, the Indemnified Party shall have not compromise or settle such Third Party Claim without the right to participate in prior written consent of the defense of such claim at its own expense.
(d) If a claimIndemnifying Party, whether between the parties which consent shall not be unreasonably withheld, conditioned or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) delayed. If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claimThird Party Claim in accordance with this Section 11.3, the Indemnified Party may defend against such Third Party Claim in such manner as it may deem appropriate, including settling such claim or litigation (after giving prior written notice of the same to the Indemnifying Party and obtaining the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed) on such terms as the Indemnified Party may reasonably deem appropriate, and the Indemnifying Party shall be bound by the results obtained in good faith by promptly indemnify the Indemnified Party in accordance with respect to such claimthe provisions of this Article 11.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The Whenever a claim shall arise ----- ------------------------------ for indemnification under Sections 14.1, 14.2 and 14.3, with the exception of claims for litigation expenses in respect of litigation as to which a notice of claim, as provided in this Section 14.4, has previously been given, which expenses shall be funded on an ongoing basis, the party claiming the entitled to indemnification (the “"Indemnified Party”") shall promptly give notice to notify the party from whom the ----------------- which indemnification is claimed sought (the “"Indemnifying Party”") of any such claim whether between and, ------------------ when known, the parties or brought by a third party against facts constituting the Indemnified Party, specifying (i) the factual basis for such claim; provided, and (ii) however, -------- ------- that in the amount event of the claim. If a any claim relates to an action, suit, for indemnification hereunder resulting from or in connection with any claim or legal proceeding filed by a third party against party, the Indemnified Party shall give such notice shall be given by the Indemnified Party thereof to the Indemnifying Party not later than ten business days prior to the time any response to the asserted claim is required, if possible, and in any event within ten (10) five business days after written following receipt of notice thereof. Failure to give timely notice or to include any specified information in any notice required by this Section 14.4 will not effect the rights or obligations of any party hereunder except and only to the extent that, as a result of such actionfailure, suitany party which was entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise damaged as a result of such failure. In the event of any such claim for indemnification resulting from or in connection with a claim or legal proceeding by a third party, or proceeding shall have been given the Indemnifying Party may, at its sole cost and expense, assume the defense thereof using counsel who is reasonably satisfactory to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim; provided, -------- however, that the Indemnifying Party shall first have thirty (30) days agreed in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, writing that it ------- does not and will not contest its responsibility for indemnifying the Indemnified Party agrees in respect of Losses attributable to make available to such claim or proceeding; and provided, however, that if the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If defendants in any such actions include both -------- ------- the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully have reasonably concluded that there may be legal defenses or rights available to it which have not been waived and are in actual or potential conflict with those available to the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate select one law firm to act as separate counsel, on behalf of such Indemnified Party, at the expense of the Indemnifying Party. Subject to the second proviso of the immediately preceding sentence, if an Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall be entitled to select counsel and take all steps necessary in the defense thereof; provided, however, that no settlement shall be made without the -------- ------- prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld (and if the Indemnified Party shall withhold its consent to any monetary settlement proposed by the Indemnifying Party and which the other party to the action has indicated it is prepared to accept, the Indemnified Party shall in no event be deemed for purposes of this Agreement to have suffered Losses in connection with such claim or proceeding in excess of the proposed amount of such claim settlement); and provided, further, that subject to -------- ------- the second proviso of the immediately preceding sentence, the Indemnified Party may, at its own expense.
(d) If a claim, whether between participate in any such proceeding with the parties counsel of its choice without any right of control thereof. So long as the Indemnifying Party is in good faith defending such claim or by a third party, requires immediate actionproceeding, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) Indemnified Party shall not compromise or settle such claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claimsuch claim or litigation in accordance with the terms hereof, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, without limitation, settling such claim or litigation (after giving prior written notice of the same to the Indemnifying Party and obtaining the prior written consent of the Indemnifying Party, which consent shall not be bound by unreasonably withheld) on such terms as the results obtained Indemnified Party may deem appropriate, and the Indemnifying Party will promptly indemnify the Indemnified Party in good faith by accordance with the provisions of this Section 14.4. Notwithstanding the foregoing, at any time after the Indemnifying Party has failed to discharge its liability for legal and other expenses pursuant to this Section 14.4, which failure shall not have been cured, or at any time the Indemnifying Party is subject to a bankruptcy case pursuant to Chapter 7 or Chapter 11 of the U.S. Bankruptcy Code, if the Indemnified Party shall propose to settle a claim as to which it intends to seek indemnity, it shall provide the Indemnifying Party with 21 days' written notice of such proposed settlement, and the Indemnifying Party shall, within such period either (i) consent to the terms of the proposed settlement or (ii) provide the Indemnified Party with respect (A) a written notice of objection to the proposed settlement, with a statement of reason, (B) reasonable evidence that the financial condition of the Indemnifying Party is sufficient to permit it to pay a judgment for the full amount being sought by the third party claimant (or, at the Indemnified Party's request, a letter of credit in such claimamount) and (C) an undertaking to satisfy any such judgment.
(fb) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend Notwithstanding anything to the shareholderscontrary herein contained, directors, officers and Affiliates of in the Indemnified event the Company is an Indemnifying Party, although the Company may settle any third-party claim against an Indemnified Party as long as it obtains an unconditional release from such third party for the purpose benefit of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification shall be Except as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give notice otherwise provided in Sections 6.1 and 6.2, subject to the limitations imposed by Sections 6.1, 6.2 and 6.3 and 8.1, promptly after receipt by an indemnified party from whom pursuant to the indemnification is claimed (provisions of this Article VI of notice of the “Indemnifying Party”) commencement of any action, claim whether between or proceeding involving the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount subject matter of the claim. If foregoing indemnity provisions, such indemnified party shall, if a claim relates thereof is to be made against an action, suit, or proceeding filed by a third indemnifying party against the Indemnified Party such notice shall be given by the Indemnified Party pursuant to the Indemnifying Party within ten (10) days after written notice provisions of this Article VI, promptly notify such indemnifying party of the commencement thereof; but the omission to so notify such indemnifying party shall not relieve it from any liability which it may have to the indemnified party otherwise than hereunder unless such omission shall have materially adversely affected the indemnifying party' s ability to defend such action, suitclaim or proceeding. In case such action, claim or proceeding shall have been given to is brought against an indemnified party and it notifies the Indemnified Party.
(b) Following receipt indemnifying party of notice from the Indemnified Party of a claimcommencement thereof, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third indemnifying party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in orin, if and, to the extent that it so electsmay wish, to assume control of the defense of or conduct thereof, with counsel reasonably satisfactory to such claimindemnified party; provided, however, if the defendants in any action include both the indemnified party and the Indemnified Party indemnifying party and the indemnified party shall cooperate fully with have reasonably concluded, based upon a written opinion of legal counsel, that there may be legal defenses available to it which are different from or additional to those available to the Indemnifying Partyindemnifying party, subject to reimbursement or if there is a conflict of interest which would prevent counsel for reasonable actual out-of-pocket expense incurred by the Indemnified Party as indemnifying party from also representing the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claimindemnified party, the Indemnified Party indemnified party shall have the right to select separate counsel to participate in the defense of such claim action on behalf of such indemnified party. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to the indemnified party for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (i) the indemnified party shall have employed counsel in accordance with the proviso of the preceding sentence, (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after the notice of the commencement of the action, or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at its own expense.
(d) If a claim, whether between the parties or by a third expense of the indemnifying party. No indemnifying party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-such claim or litigation, shall, except with the consent of each indemnified party claimwhich consent shall not be unreasonably withheld, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the Indemnifying Party shall be bound by the results obtained release from all liability in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof claim or litigation. In the event the proceeding is a tax audit, the indemnified party shall extend to not take any action, including, without limitation, the shareholdersextension of any applicable limitations period, directors, officers and Affiliates without the express written consent of the Indemnified Partyindemnifying party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties which consent shall not be made by and through the Indemnified Partyunreasonably withheld.
Appears in 1 contract
Sources: Stock Purchase Agreement (Clean Energy Fuels Corp.)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming If there occurs a Loss that either Party asserts is indemnifiable pursuant to Section 5.1 or 5.2, the Party seeking indemnification (the “Indemnified PartyIndemnitee”) shall promptly give provide notice (the “Notice of Claim”) to the party from whom the other Party or Parties obligated to provide indemnification is claimed (the “Indemnifying Party”) ); provided, that the failure of any claim whether between Indemnitee to give prompt notice as provided in this Section 5.3 shall not relieve the parties Indemnifying Party of its obligations under Article V except and only to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such Action or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice Proceeding shall be given by brought against any Indemnitee and the Indemnified Party Indemnitee shall provide a Notice of Claim to the Indemnifying Party within ten (10) days of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after written notice from the Indemnifying Party to such Indemnitee of such actionelection so to assume the defense thereof, suitthe Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, or proceeding in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have been given the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, consent to the Indemnified Partyentry of a judgment (which shall not be unreasonably withheld, conditioned or delayed), settle any Claim or consent to the entry of a judgment on any terms other than the payment of money for which the Indemnifying Party is wholly liable.
(b) Following Upon receipt of notice from the Indemnified Party a Notice of a claimClaim, the Indemnifying Party shall have thirty twenty (3020) calendar days in which to make contest its indemnification obligation with respect to such investigation claim, or the amount thereof, by providing written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available Claim is submitted to the Indemnifying Party and/or its authorized representative(sthe amount of the Loss in respect thereof has not yet been determined, such 20-day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) the information relied upon has been sent or delivered by the Indemnified Party Indemnitee to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to setting forth the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or if bases for the objection of the Indemnifying Party does not respond to such noticethe claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party shall immediately pay believes is due to the Indemnified Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20-day period, the obligation of the Indemnifying Party to pay the full Indemnitee the amount of the claim; providedLoss set forth in the Notice of Claim, that the amount held in escrow to secure Sellers’ indemnification or subsequent Notice of Buyer Liability, shall be paid in satisfaction of any claim payable deemed established and accepted by Sellers until that amount is exhausted (if it is)the Indemnifying Party.
(c) With respect If the Indemnifying Party fails to any claim by a third party as assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to which contest such Claim in good faith, the Indemnified Party is entitled Indemnitee, without waiving its right to indemnification hereunderindemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall have the right at its own expense be permitted to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate join in the defense and settlement of such claim Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without soliciting the views of the Indemnifying Party and giving them due consideration.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the The Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect make any payment required to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by under this Article V in cash and through the Indemnified Partyon demand.
Appears in 1 contract
Sources: Asset Purchase Agreement (Martin Midstream Partners Lp)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the Any Person making a claim for indemnification under Sections 7.2 or 7.3 (the an “Indemnified Party”) shall promptly give notice to notify the party from against whom the indemnification is claimed sought (the an “Indemnifying Party”) of the claim in writing (such written notice, an “Indemnification Notice”) promptly after receiving notice of any action, lawsuit, proceeding, investigation, demand or other claim whether between against the parties or brought Indemnified Party by a third party against (a “Third Party Claim”). Each such Indemnification Notice shall describe, in reasonable detail to the Indemnified Partyextent practicable, specifying (i) the factual basis applicable Third Party Claim, including the facts giving rise to such claim for such claimindemnification hereunder, and (ii) the amount or method of computation of the amount of the claim. If a such claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party (if known) and such notice shall be given by the Indemnified Party to other information with respect thereto as the Indemnifying Party within ten (10) days after written notice may reasonably request; provided, however, that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of such action, suit, or proceeding shall have been given its obligations hereunder except to the Indemnified Partyextent that (and only to the extent that) the Indemnifying Party is materially prejudiced by such failure.
(b) Following receipt of notice from the Indemnified Party of a claim, the Any Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim Third Party Claim at such Indemnifying Party’s expense, and, at its own expense.
option if exercised within 10 business days after receiving an Indemnification Notice, shall be entitled to assume the defense thereof by appointing a reputable counsel to be the lead counsel in connection with such defense; provided, however, that the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ counsel of its choice for such purpose (d) provided, however, that the fees and expenses of such separate counsel shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this Article VI). If the Indemnifying Party assumes the defense of a claimThird Party Claim, whether between it will be conclusively established for purposes of this Agreement that the parties claims made in that Third Party Claim are within the scope of and subject to indemnification hereunder. Notwithstanding the foregoing, if the Indemnified Party shall have determined in good faith and upon advice of counsel that an actual or likely conflict of interest makes representation of the Indemnifying Party and the Indemnified Party by a third partythe same counsel inappropriate, requires immediate actionor if the Indemnifying Party, in the reasonable judgment of the Indemnified Party, has failed to diligently pursue the relevant claims or defense, then the Indemnified Party may, upon notice to the Indemnifying Party, engage separate counsel, and the reasonable fees and expenses of such separate counsel shall be borne by the Indemnifying Party to the extent the Third Party Claim is indemnifiable hereunder. Notwithstanding anything to the contrary in this Section 7.5(b), the parties Indemnified Party will make all have the absolute right to conduct and control, through counsel of its choosing (the reasonable efforts fees and expenses of which shall be paid by the Indemnifying Party, subject to reach a decision the limitations set forth in this Article VI), the defense, compromise and settlement of any Third Party Claim if: (i) such Third Party Claim seeks an injunction or other equitable relief against the Indemnified Party, (ii) the Third Party Claim relates to or arises in connection with respect thereto as expeditiously as possible.
any criminal or quasi criminal Proceeding, (eiii) If the amount of Losses involved in such Third Party Claim exceeds the then-remaining amount available for indemnification pursuant to Section 7.4(a), or (iv) the Indemnifying Party does not elect to assume control or otherwise participate in of the defense within 10 business days after receiving an Indemnification Notice.
(c) Upon assumption of the defense of any third-party claimsuch Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of the Third Party Claim, unless the Indemnifying Party consents in writing to such payment. Notwithstanding anything to the contrary herein, the Indemnifying Party shall not compromise or settle, or admit any liability with respect to, any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be bound unreasonably withheld, conditioned or delayed), unless the relief consists solely of: (i) money damages (all of which the Indemnifying Party shall pay), and (ii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto.
(d) In all cases, the Indemnified Party shall provide its reasonable cooperation to the Indemnifying Party in defense of claims or litigation relating to Third Party Claims, including by making employees, information and documentation reasonably available. If the results obtained Indemnifying Party does not assume the defense of any such Third Party Claim in good faith accordance with the terms hereof, or fails to prosecute or withdraws from the defense of any such Third Party Claim, the Indemnified Party may defend against such matter in a manner consistent with the above provisions regarding conduct of the defense by the Indemnified Party; provided, however, that the Indemnified Party with respect to may not settle any such claimmatter without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed).
(fe) The indemnification rights provided in Sections 12.2 and 12.3 hereof Any Indemnified Party making a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim shall extend deliver notice of such claim promptly to the shareholdersIndemnifying Party, directorsdescribing in reasonable detail the facts giving rise to any claim for indemnification hereunder, officers and Affiliates the amount or method of computation of the Indemnified Partyamount of such claim (if known) and such other information with respect thereto as the Indemnifying Party may reasonably request; provided, although for however, the purpose failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the procedures set forth in this Section 12.4, any indemnification claims extent that (and only to the extent that) the Indemnifying Party is materially prejudiced by such parties shall be made by and through the Indemnified Partyfailure.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (ARC Group, Inc.)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming If there occurs an event that a Party asserts is an indemnifiable event pursuant to Section 5.1 or 5.2, the Party seeking indemnification (the “Indemnified PartyIndemnitee”) shall promptly give provide notice (the “Notice of Claim”) to the party from whom the other Party or Parties obligated to provide indemnification is claimed (the “Indemnifying Party”) ). Providing the Notice of Claim shall be a condition precedent to any claim whether between Liability of the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claimIndemnifying Party hereunder, and (ii) the amount failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the claimextent that such failure materially prejudices the Indemnifying Party hereunder. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party In case any such notice action shall be given by the Indemnified Party brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claimcommencement thereof, the Indemnifying Party shall have thirty (30) days in which be entitled to make participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such investigation of the claim as Indemnitee and, after notice from the Indemnifying Party shall deem necessary or desirable. For the purposes to such Indemnitee of such investigation, election so to assume the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension defense thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay not be liable to the Indemnified Party Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the full amount Indemnitee, in connection with the defense thereof other than reasonable costs of the claiminvestigation; provided, however, that if the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until Indemnitee reasonably believes that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at its own the sole cost and expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject such action by all appropriate proceedings. The Indemnitee agrees to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by reasonably cooperate with the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of and its counsel in the defense of against any third-party claimsuch asserted liability. In any event, the Indemnified Party Indemnitee shall have the right to participate at its own expense in the defense of such claim at its own expense.
(d) If a claimasserted liability. No Indemnifying Party, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claimsuch claim or litigation, shall, except with the Indemnifying Party shall be bound by written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the results obtained release of the Indemnitee from all Liability in good faith by the Indemnified Party with respect to such claim.
(f) claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The indemnification rights provided in Sections 12.2 Indemnifying Party agrees to afford the Indemnitee and 12.3 hereof its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall extend to the shareholdersIndemnifying Party, directors, officers and Affiliates without the written consent of the Indemnified PartyIndemnitee, although settle any Claim on terms that provide for (i) a criminal sanction against the purpose of Indemnitee or (ii) injunctive relief affecting the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified PartyIndemnitee.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Martin Midstream Partners Lp)
Procedures for Indemnification. The procedures Whenever a claim shall arise for indemnification shall be under this Section 5, the relevant Indemnities, as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) appropriate, shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to notify the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given and request the Indemnifying Party to defend the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, same. Failure to so notify the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as not relieve the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to any liability which the Indemnifying Party and/or its authorized representative(s) might have, except to the information relied upon by extent that such failure prejudices the Indemnified Party Indemnifying Party's ability to substantiate the defend such claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the The Indemnifying Party shall have the right at its own expense to participate defend against such liability or assertion in or, if it so elects, which event the Indemnifying Party shall give written notice to assume control the relevant Indemnities of acceptance of the defense of such claimclaim and the identity of counsel selected by the Indemnifying Party. Such notice of the relevant Indemnities shall give the Indemnifying Party full authority to defend, adjust, compromise or settle such action, suit, proceeding or demand with respect to which such notice shall have been given, except to the extent that any compromise or settlement shall affect any rights of any Indemnitee, and which settlement or compromise shall be subject to the Indemnified Party shall cooperate fully with prior approval of the Indemnitee. With respect to any defense accepted by the Indemnifying Party, subject the relevant Indemnities shall be entitled to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by participate with the Indemnifying Party in such defense if the action or claim requests equitable relief or other relief that could affect the rights of the Indemnity and also shall be entitled to so cooperateemploy separate counsel for such defense at such Indemnities expense. If In the event the Indemnifying Party elects to assume control of does not accept the defense of any third-party claimindemnified claim as provided above, the Indemnified Party relevant Indemnities shall have the right to participate in employ counsel for such defense at the defense expense of such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect Party. Each party agrees to assume control or otherwise participate cooperate and to cause its employees and agents to cooperate with then other party in the defense of any third-such action and the relevant records of each party claim, the Indemnifying Party shall be bound by available to the results obtained in good faith by the Indemnified Party other party with respect to any such claimdefense.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Sources: Internet Marketing & Co Branded Web Site Agreement (Buildnet Inc)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The A party claiming the seeking indemnification pursuant to Section 9.1, 9.2A or 9.2B (the “Indemnified Party”an "INDEMNIFIED PARTY") shall promptly give prompt notice to the party from whom the such indemnification is claimed sought (the “Indemnifying Party”"INDEMNIFYING PARTY") of the assertion of any claim whether between or assessment, or the parties commencement of any action, suit, audit or brought proceeding, by a third party against in respect of which indemnity may be sought hereunder (a "THIRD PARTY CLAIM"), and will give the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request, but no failure to give such notice shall relieve the Indemnifying Party of any liability hereunder (except to the extent the Indemnifying Party has suffered actual prejudice thereby). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within seven days after the Indemnified Party's receipt thereof, specifying copies of all notices and documents (iincluding court papers) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given received by the Indemnified Party relating to the Third Party Claim. The Indemnifying Party within ten (10) days after shall have the right, exercisable by written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following Party within thirty days of receipt of notice from the Indemnified Party of the commencement of or assertion of any Third Party Claim, to assume the defense of such Third Party Claim, using counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party. Should the Indemnifying Party so elect to assume the defense of a claimThird Party Claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does will not respond to such notice, the Indemnifying Party shall immediately pay be liable to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, so long as the result of a request by the Indemnifying Party to so cooperateis actively defending such Third Party Claim. If Regardless of whether the Indemnifying Party elects to assume control of the defense of any third-party claimsuch Third Party Claim, so long as the Indemnifying Party shall have paid all documented costs and expenses of the Indemnified Parties that are indemnifiable hereunder (and that are not in dispute in good faith) relating to the applicable Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent, such consent not to be unreasonably withheld.
(b) The Indemnifying Party or the Indemnified Party, as the case may be, shall in any event have the right to participate participate, at its own expense, in the defense of any Third Party Claim which the other is defending. The Indemnifying Party shall bear the reasonable fees, costs and expenses of separate counsel of the Indemnified Party if: (i) the use of counsel chosen by the Indemnifying Party to represent the Indemnified Party would present such claim counsel with a conflict of interest, such conflict of interest is not remedied by waiver and the Indemnifying Party does not or cannot choose another counsel without a conflict of interest, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the institution of such claim, or (iii) the Indemnifying party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense.
(c) The Indemnifying Party, if it shall have assumed the defense of any Third Party Claim in accordance with the terms hereof, shall have the right, upon thirty (30) days prior written notice to the Indemnified Party, to consent to the entry of judgment with respect to, or otherwise settle such Third Party Claim provided the Indemnifying Party satisfies and discharges such judgment or settlement unless (i) the Third Party Claim involves equitable or other non-monetary damages or (ii) in the reasonable judgment of the Indemnified Party such settlement would have a continuing material adverse effect on the Indemnified Party's or any of its own expenseaffiliates' businesses (including any material impairment of its relationships with customers and suppliers), in which case such settlement only may be made with the written consent of the Indemnified Party, which consent shall not be unreasonably withheld.
(d) If a claim, whether between Whether or not the parties Indemnifying Party chooses to defend or by prosecute any claim involving a third party, requires immediate action, all the parties will make all reasonable efforts hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. Such cooperation shall include access during normal business hours afforded to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to, and reasonable retention by the Indemnified Party of, records and information which are reasonably relevant to assume control or otherwise participate in the defense such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any third-party claimmaterial provided hereunder, and the Indemnifying Party shall be bound by the results obtained in good faith by reimburse the Indemnified Party with respect to such claimfor all its reasonable out-of-pocket expenses in connection therewith.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Trans World Entertainment Corp)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the If a claim for Damages (an “Indemnity Claim”), other than Third-Party Claims under Section 8.5(b) below, is to be made by a Person entitled to indemnification under this Article VIII (the an “Indemnified Party”), such party shall give written notice briefly describing the claim and the total monetary damages sought (each, a “Notice”) shall promptly give notice to the party from whom the indemnification is claimed Seller or Buyer, as applicable (the each an “Indemnifying Party”) as soon as practicable after such Indemnified Party becomes aware of any fact, condition or event which gives rise to Damages for which indemnification may be sought under this Article VIII. Any failure to submit any such notice of claim whether between to the parties Indemnifying Party shall not relieve any Indemnifying Party of any liability hereunder, except to the extent that the Indemnifying Party demonstrates that the Indemnifying Party was actually prejudiced by such failure. The Indemnifying Party shall be deemed to have accepted the Notice and the Indemnifying Party shall be deemed to have agreed to pay the Table of Contents Damages at issue if the Indemnifying Party does not send a notice of disagreement to the Indemnified Party within thirty (30) calendar days after receiving the Notice. If the Indemnifying Party does not send a notice of disagreement to the Indemnified Party within thirty (30) calendar days after receiving the Notice, the Indemnifying Party shall promptly pay to the Indemnified Party the amount sufficient to pay the Damages.
(b) If an Indemnity Claim is to be made by an Indemnified Party entitled to indemnification hereunder in respect of, arising out of or brought involving a claim made by a any third party (each, a “Third-Party Claim”) against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party give a Notice to the Indemnifying Party within ten (10) days as soon as practicable after written notice becoming aware of such actionThird-Party Claim. The failure of any Indemnified Party to give timely Notice hereunder shall not affect rights to indemnification hereunder, suitexcept to the extent that the Indemnifying Party demonstrates that the Indemnifying Party was actually prejudiced by such failure. After such Notice, or proceeding if the Indemnifying Party acknowledges in writing to an Indemnified Party that the Indemnifying Party is liable and has indemnity obligations for any Damages resulting from any such Third-Party Claim (and, in the case Seller is the Indemnifying Party, if Buyer consents, which consent may be withheld in Buyer’s sole and absolute discretion, and, further, in the case Buyer is the Indemnifying Party, if Seller consents, which consent may be withheld in Seller’s sole and absolute discretion), then the Indemnifying Party shall have been given be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such Third-Party Claim, (ii) to employ and engage attorneys of its own choice (provided that such attorneys are reasonably acceptable to the Indemnified Party.
(b) Following receipt of notice from to handle and defend the Indemnified Party of a claimsame, unless the Indemnifying Party shall have thirty (30) days in which named parties to make such investigation of the claim as the Indemnifying Party shall deem necessary action or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If proceeding include the Indemnified Party and the Indemnifying Party, and any such Indemnified Party agree at has been advised in writing by counsel that there may be one or prior more legal defenses available to such Indemnified Party that are different from or additional to those available to the expiration Indemnifying Party, in which event such Indemnified Party shall be entitled, at the Indemnifying Parties’ cost, risk and expense, to separate counsel of said thirty its own choosing, and (30) day period (or any agreed upon extension thereofiii) to the validity and amount of compromise or settle such claim, which compromise or if settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld, provided that any such compromise or settlement shall provide for the absolute and unconditional release of the Indemnified Parties from any Liability with respect to such Third-Party Claim. If the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of assumes the defense of such claima Third-Party Claim (to the extent permitted above), and the Indemnified Party shall cooperate fully in all reasonable respects with the Indemnifying PartyParty and its attorneys in the investigation, subject to reimbursement for reasonable actual outtrial and defense of such Third-of-pocket expense incurred by Party Claim and any appeal arising therefrom; provided, however, that the Indemnified Party as may, at its own cost, participate in the result investigation, trial and defense of a request by the Indemnifying Party such lawsuit or action and any appeal arising therefrom. The parties shall cooperate with each other in any notifications to so cooperateinsurers. If the Indemnifying Party elects fails to assume control of the defense of any thirdsuch claim within fifteen (15) calendar days after receipt of the Notice (whether as a result of its election not to assume such defense or, as applicable, the refusal of Buyer or Seller to grant a request of the other to assume such defense), the Indemnified Party against which such claim has been asserted will have the right to undertake, at the Indemnifying Parties’ cost, risk and expense, the defense, compromise or settlement of such Third-party Party Claim on behalf of and for the account and risk of the Indemnifying Parties; provided, however, that such claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnified Party shall have will keep the right to Indemnifying Party reasonably informed of the progress of any such defense, Table of Contents compromise or settlement; provided, however, that the Indemnifying Party may, at its own cost, participate in the investigation, trial and defense of such claim at its own expense.
(d) If a claim, whether between the parties lawsuit or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of action and any third-party claim, the appeal arising therefrom. The Indemnifying Party shall be bound by the results obtained liable for any settlement of any Third-Party Claim effected pursuant to and in good faith by accordance with this Section 8.5 and for any final judgment (subject to any right of appeal), and each Indemnifying Party agrees to indemnify and hold harmless the Indemnified Party with respect to from and against any Damages by reason of such claimsettlement or judgment.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ambassadors International Inc)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming An Indemnification Claim shall be made by the indemnification (the “Indemnified Party”) shall promptly give notice Indemnitee by delivery of a written declaration to the party from whom Indemnitor requesting indemnification and specifying in reasonable detail the basis on which indemnification is claimed (sought and the “Indemnifying Party”) amount of asserted Losses and, in the case of a Third Party Claim, attaching any written correspondence asserting such Third Party Claim. With respect to a Third Party Claim, an Indemnitee shall deliver such declaration to Indemnitor promptly after receiving notice of such Third Party Claim; provided, however, the failure to notify the Indemnitee will not relieve the Indemnitor of any claim whether between liability that it may have to the parties Indemnitee, except to the extent that the Indemnitor's defense of or brought ability to settle such Indemnification Claim is actually and materially prejudiced by the Indemnitee's failure to give such notice.
(b) If the Indemnification Claim involves a third party against Third Party Claim, the Indemnified Partyprocedures set forth in Section 7.5 hereof shall be observed by the Indemnitee and the Indemnitor.
(c) If the Indemnification Claim involves a matter other than a Third Party Claim, the Indemnitor shall have twenty (20) Business Days to object to such Indemnification Claim by delivery of a written notice of such objection to the Indemnitee specifying (i) in reasonable detail the factual basis for such claimobjection. If an objection is timely interposed by the Indemnitor, then the Indemnitee and the Indemnitor shall negotiate in good faith for a period of fifteen (ii15) Business Days from the date (such period is hereinafter referred to as the "Negotiation Period") the Indemnitee receives such objection. After the Negotiation Period, if the Indemnitor and the Indemnitee still cannot agree on an Indemnification Claim, either the Indemnitor and Indemnitee may commence litigation regarding the dispute.
(d) Upon determination of the amount of an Indemnification Claim that is binding on both the claim. If a claim relates to an actionIndemnitor and the Indemnitee, suit, or proceeding filed the Indemnitor shall pay the amount of such Indemnification Claim by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party wire transfer of immediately available funds within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of date such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is)determined.
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Sources: Equity Purchase Agreement (Composite Technology Corp)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification Promptly after receipt by a Buyer Indemnified Party or Seller Indemnified Party, as applicable (the “Indemnified Party”), of written notice of the assertion or the commencement of any claim or other litigation by a third party with respect to any matter referred to in Sections 8.2(a)-8.2(f) or 8.3(a)-8.3(e), the Indemnified Party shall promptly give written notice thereof to the party from whom the indemnification is claimed Seller or Buyer, as applicable (the “Indemnifying Party”), which notice shall include a description of the claim or litigation and the good faith estimated amount of Losses asserted in connection therewith (to the extent such Losses can, in good faith, be estimated) and the basis for the claim or litigation, and thereafter shall keep the Indemnifying Party reasonably informed with respect thereto; provided, however, that failure of any claim whether between the parties or brought by a Indemnified Party to give such notice as provided herein shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party is actually prejudiced thereby.
(b) The Indemnifying Party shall be entitled to participate in the defense of such third party against claim or litigation giving rise to the Indemnified Party’s claim for indemnification at the Indemnifying Party’s expense, and at its option (subject to the limitations set forth below), to be exercised by giving written notice to the Indemnified Party, specifying shall be entitled to assume the defense thereof at the Indemnifying Party’s expense by appointing a reputable counsel reasonably acceptable (such acceptance not to be unreasonably withheld, conditioned, or delayed) to the Indemnified Party to be the lead counsel in connection with such defense; provided, however, that:
(i) the factual basis Indemnified Party shall be entitled to participate in the defense of such claim or litigation and to employ counsel of its choice for such claimpurpose, so long as the fees and expenses of such separate counsel are borne by the Indemnified Party; provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable documented and out-of-pocket fees and expenses of counsel to the Indemnified Party if it is ultimately determined that such Indemnifying Party is required to indemnify such Indemnified Party hereunder;
(ii) the Indemnifying Party shall not be entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnified Party) and shall pay the reasonable documented and out-of-pocket fees and expenses of counsel retained by the Indemnified Parties if it is ultimately determined that such Indemnifying Party is required to indemnify such Indemnified Party hereunder if (A) the claim for indemnification relates to or arises in connection with any criminal proceeding, action or indictment; or (B) the claim seeks an injunction or equitable relief against an Indemnified Party;
(iii) at any time during the pendency of such claim or any litigation or other proceeding relating thereto, the Indemnified Party may assume control of the defense and settlement of such claim upon prior written notice to the Indemnifying Party if, in the reasonable judgment of the Indemnified Party, the Indemnifying Party fails to diligently defend such claim; and
(iv) if the Indemnifying Party assumes control of the defense of any such claim or litigation, the Indemnified Party shall agree to any settlement, compromise or discharge of such claim or litigation that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of Losses in connection with such claim or litigation and does not impose any financial or other material obligations or material restrictions on the claim. If Indemnified Party in any manner (for clarity, other than obligations for which the Indemnified Party is indemnified hereunder); provided, however, that the Indemnifying Party shall obtain the prior written consent of the Indemnified Party before entering into any settlement of a claim relates or litigation or ceasing to an actiondefend such claim or litigation if, suitpursuant to or as a result of such settlement or cessation, injunctive or proceeding filed by a third party other equitable relief will be imposed against the Indemnified Party or if such notice shall be given by settlement does not expressly and unconditionally release the Indemnified Party from all liabilities with respect to such claim or litigation, with prejudice.
(c) In order for any Indemnified Party to be entitled to any indemnification pursuant to this Article VIII for a Loss that does not result from any claim or other litigation by a third party, the Indemnified Party shall notify the Indemnifying Party in writing within ten (10) days after written notice Business Days of such actionIndemnifying Party becoming aware of the event giving rise to such Indemnified Party’s claim for indemnification, suitspecifying in reasonable detail the basis of such claim; provided, or proceeding however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been given to the Indemnified Party.
(b) Following receipt actually prejudiced as a result of notice from the Indemnified Party of a claim, the such failure. The Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes after its receipt of such investigationnotice to respond in writing to such claim, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said during which thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if Indemnified Party shall give the Indemnifying Party does not respond reasonable access to the books, records and assets of the Indemnified Party which evidence or support such claim or the act, omission or occurrence giving rise to such noticeclaim and the right, upon prior notice during normal business hours, to interview any Representative of such Indemnified Party, including outside legal counsel, accountants and financial advisors of the Indemnified Party related thereto. If the Indemnifying Party disputes its liability with respect to any such claim, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject proceed to reimbursement negotiate a resolution of such dispute for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result a period of a request by the Indemnifying Party to so cooperatethirty (30) days. If after the Indemnifying Party elects to assume control conclusion of such thirty (30) day period the defense of any third-party claimdispute has not been resolved, the Indemnified Party shall have the right be free to participate in the defense of pursue such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts remedies as may be available to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 on the terms and 12.3 hereof shall extend subject to the shareholders, directors, officers and Affiliates provisions of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified PartyAgreement.
Appears in 1 contract
Procedures for Indemnification. The procedures Promptly after receipt by a Tejas Indemnified Party of written notice of the assertion or the commencement of any proceeding by a third-party with respect to any matter referred to in Section 8.01, the Tejas Indemnified Party shall give written notice thereof to the Holders, and thereafter shall keep the Holders reasonably informed with respect thereto; provided, however, that failure of the Tejas Indemnified Party to give the Holders notice as provided herein shall not relieve the Holders of their obligations hereunder, except to the extent that the Holders are prejudiced thereby. A claim for indemnification shall for any matter not involving a third-party proceeding may be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give asserted by notice to the party from whom Holders and shall be paid promptly after such notice. If the indemnification is claimed (facts pertaining to a Loss arise out of the “Indemnifying Party”) claim of any third party, or if there is any claim whether between the parties or brought by against a third party against available by virtue of the circumstances of the Loss, the Holders may assume the defense or the prosecution thereof by prompt written notice to the Tejas Indemnified Party, specifying (i) including the factual basis for such claimemployment of counsel or accountants, at its sole cost and (ii) the amount of the claimexpense. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claimIn connection therewith, the Indemnifying Party Holders shall have thirty (30) days in which to make acknowledge that such investigation claim is the proper subject of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claimindemnification under Section 8.01; provided, however, that the amount held in escrow to secure Sellers’ indemnification of Buyer foregoing shall be paid in satisfaction of any claim payable not foreclose the Holders from taking the position that the Loss is governed by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperateSection 8.06 hereof. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the The Tejas Indemnified Party shall have the right to employ counsel separate from counsel employed by the Holders in any such action and to participate therein, but the fees and expenses of such counsel employed by the Tejas Indemnified Party shall be at its sole cost and expense. Neither the Holders nor the Tejas Indemnified Party shall be liable for any settlement of any such claim effected without their respective prior written consent, which shall not be unreasonably withheld; provided that if the Holders do not assume the defense or prosecution of a claim as provided above within thirty (30) days after notice thereof from the Tejas Indemnified Party, the Tejas Indemnified Party may settle such claim without the Holders' consent. Whether or not the Holders choose to so defend or prosecute such claim, all the parties hereto shall cooperate in the defense of or prosecution thereof and shall furnish such claim at its own expenserecords, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Sources: Merger Agreement (Tejas Inc)
Procedures for Indemnification. As used herein, an "INDEMNIFIED ------------------------------- PARTY" means a party seeking indemnification pursuant to ARTICLE 10, and the term "INDEMNIFYING PARTY" means the party who is obligated to provide indemnification under ARTICLE 10. The procedures Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "THIRD-PARTY CLAIM") of which it has knowledge, for which such Indemnifying Party is entitled to indemnification shall under this ARTICLE 10. In the case of a Third-Party Claim, the Indemnifying Party will have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third-Party Claim at its own expense. In such case the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be as follows:
(a) The party claiming paid by the indemnification (the “Indemnified Party”) shall . The Indemnified Party will promptly give notice provide the Indemnifying Party with access to the party from whom Indemnified Party's records and personnel relating to any such Third-Party Claim during normal business hours and will otherwise cooperate with the indemnification is claimed (Indemnifying Party in the “defense or settlement of such Third-Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third-Party Claim by the Indemnifying Party”) , the Indemnified Party will not pay, or permit to be paid, any part of any claim whether between or demand arising from such Third-Party Claim, unless the parties Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld) or brought unless a final judgment from which no appeal may be taken by a third party or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third-Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claimwhich consent will not be unreasonably withheld. If a claim relates the Indemnifying Party fails to an actiondefend or fails to prosecute or withdraws from such defense, suit, or proceeding filed by a third party against then the Indemnified Party such notice shall be given by will have the Indemnified Party right to undertake the defense or settlement thereof, at the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim's expense. If the Indemnified Party assumes the defense of any such Third-Party Claim pursuant to this ARTICLE 10 and proposes to settle such Third-Party Claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall will have the right to participate in the settlement or assume or reassume the defense of such claim at its own expenseThird-Party Claim.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Crescent Communications Inc)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) As used herein, an "INDEMNIFIED PARTY" means a Purchaser Indemnitee seeking indemnification pursuant to Section 10.2 hereof or a Seller Indemnitee seeking indemnification pursuant to Section 10.3 hereof. The Indemnified Party agrees to give the other party claiming the indemnification (the “Indemnified Party”"INDEMNITOR") shall promptly give prompt written notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties event, or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such any claim, and (ii) the amount of the claim. If a claim relates to an action, suit, demand, assessment, investigation, arbitration or other proceeding filed by or in respect of a third party against the Indemnified Party (a "THIRD PARTY CLAIM") of which it has knowledge, for which such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunderunder this Article X (including in any case copies of any summons, complaint or other pleading which may have been served on it and any written claim, demand, invoice, billing or other document evidencing or asserting the same). No delay on the part of an Indemnified Party in giving the Indemnitor notice of a Third Party Claim shall relieve the Indemnitor from any obligation hereunder unless the Indemnitor is prejudiced thereby.
(b) Within twenty days of delivery of such written notice, the Indemnifying Indemnitor may, at the expense of the Indemnitor, elect to take all necessary steps properly to contest any Third Party shall Claim or to prosecute such Third Party Claim to conclusion or settlement; provided, that without the prior written consent of an Indemnified Party, the Indemnitor will not enter into any settlement of a Third Party Claim which would lead to liability or create any financial or other obligation on the part of such Indemnified Party for which such Indemnified Party is not indemnified hereunder. If the Indemnitor makes the foregoing election, an Indemnified Party will have the right to participate at its own expense in all proceedings. If the Indemnitor does not make such election or if the Indemnitor fails to take reasonable steps necessary to diligently defend such Third Party Claim within twenty days after receiving notice from the Indemnified Party that the Indemnified Party believes that the Indemnitor has failed to take such steps, an Indemnified Party shall be free to handle the prosecution or defense of any such Third Party Claim, will take all necessary steps to contest the Third Party Claim or to prosecute such Third Party Claim to conclusion or settlement satisfactory to such Indemnified Party at the sole cost and expense of the Indemnitor (including reasonable attorney's and expert's fees and expenses and court and arbitration costs), will notify the Indemnitor of the progress of any such Third Party Claim, will permit the Indemnitor, at the sole cost of the Indemnitor, to participate in orsuch prosecution or defense and will provide the Indemnitor with reasonable access to all relevant information and documentation relating to the Third Party Claim and the prosecution or defense thereof. In any case, if it so elects, to assume the party not in control of the Third Party Claim will cooperate with the other party in the conduct of the prosecution or defense of such claimThird Party Claim. Notwithstanding the foregoing, if an Indemnified Party is offered a written settlement proposal by a third party that has as its sole component the payment of money by the Indemnified Party and the Indemnitor recommends to the Indemnified Party in writing that it accept such settlement proposal (the "SANCTIONED SETTLEMENT") and the Indemnified Party shall cooperate fully with refuses to accept such settlement proposal, in such event if the Indemnifying Party, subject ultimate settlement terms agreed to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as with such third party or the result of final monetary damages award against the Indemnified Party (either, a request by "FINAL SETTLEMENT AMOUNT"), is greater than the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control amount of the defense of any third-party claimSanctioned Settlement, the Indemnified Party shall have be responsible for the right differential between the Final Settlement Amount and the Sanctioned Settlement and the Indemnitor's liability shall be limited to participate the amount specified in the defense of such claim at its own expenseSanctioned Settlement.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the Any Person making a claim for indemnification under Section 9.1 or 9.2 (the an “Indemnified Party”) shall promptly give notice to notify the party from against whom the indemnification is claimed sought (the an “Indemnifying Party”) of the claim in writing promptly after receiving notice of any action, lawsuit, proceeding, investigation, demand or other claim whether between against the parties or brought Indemnified Party by a third party against (a “Third Party Claim”), describing the Indemnified PartyThird Party Claim, specifying (i) the factual basis for such claim, and (ii) the amount thereof (if known and quantifiable) and the basis thereof in reasonable detail (such written notice, an “Indemnification Notice”); provided, that, the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the claim. If a claim relates extent that (and only to an action, suit, or proceeding filed by a third party against the extent that) such failure shall have caused the indemnifiable Losses to be greater than such Losses would have been had the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written prompt notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the hereunder. Any Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim Third Party Claim at such Indemnifying Party’s expense, and at its own expenseoption shall be entitled to assume the defense thereof by appointing a reputable counsel to be the lead counsel in connection with such defense; provided, that, the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ counsel of its choice for such purpose (provided, that, the fees and expenses of such separate counsel shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this ARTICLE IX). Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of the Third Party Claim, unless the Indemnifying Party consents in writing to such payment (such consent not to be unreasonably withheld or delayed) or unless a final judgment or tribunal finding from which no appeal may be taken by or on behalf of the Indemnified Party is entered or made against the Indemnified Party for such Liability or a matter has been settled with the consent (such consent not to be unreasonably withheld or delayed) of the Indemnifying Party. Notwithstanding anything to the contrary herein, the Indemnifying Party shall not compromise or settle, or admit any Liability with respect to, any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), unless the relief consists solely of (i) money damages (all of which the Indemnifying Party shall pay) and (ii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto. The Indemnified Party shall provide its reasonable cooperation with the Indemnifying Party in defense of Third Party Claims, including by making employees, information and documentation reasonably available. If the Indemnifying Party shall not reasonably promptly assume the defense of any such Third Party Claim, or fails to prosecute or withdraws from the defense of any such Third Party Claim, the Indemnified Party may defend against such matter in a manner consistent with the above provisions regarding conduct of the defense by the Indemnified Party; provided, that, the Indemnified Party may not settle any such matter without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).
(b) The Indemnified Party shall notify the Indemnifying Party with respect to an indemnifiable claim together with the Related Claims that exceeds the Minimum Per Claim Amount even though the amount thereof, plus the amount of other indemnifiable claims that exceed the Minimum Per Claim Amount previously notified by the Indemnified Party, in the aggregate, is less than the Deductible.
(c) In the event that any party or any of its Affiliates alleges that it is entitled to indemnification hereunder, and that its claim is covered under more than one provision of this ARTICLE IX, such party or Affiliates shall be entitled to elect the provision or provisions under which it may bring a claim for indemnification.
(d) If A claim for indemnification for any matter not involving a claim, whether between the parties or Third Party Claim may be asserted by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend notice to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any party from whom indemnification claims by such parties shall be made by and through the Indemnified Partyis sought.
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The Promptly after receipt by an indemnified party claiming the indemnification (the “Indemnified Party”) shall promptly give notice pursuant to the party from whom the indemnification is claimed provisions of Sections (the “Indemnifying Party”b) or (c) of any claim whether between the parties or brought by this Section 7 of notice of a third party against claim or the Indemnified Partycommencement of any third party action pursuant to the provisions of such Sections 7(b) or (c), specifying (i) the factual basis for such claim, and (ii) the amount indemnified party shall promptly notify such indemnifying party of the claim. If a claim relates commencement thereof; but the omission to an action, suit, or proceeding filed by a third so notify such indemnifying party against the Indemnified Party such notice shall be given by the Indemnified Party will not relieve it from any liability which it may have to the Indemnifying Party within ten (10) days after written notice indemnified party otherwise than hereunder unless the indemnified party is materially prejudiced thereby. In case such action is brought against an indemnified party and it notifies the indemnifying party of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claimcommencement thereof, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third indemnifying party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in orin, if and, to the extent that it so electsmay wish, to assume control of the defense of thereof, with counsel reasonably satisfactory to such claimindemnified party; provided, however, if the defendants in any action include both the indemnified party and the Indemnified Party indemnifying party and the indemnified party shall cooperate fully with have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the Indemnifying Partyindemnifying party, subject to reimbursement or if there is a conflict of interest which would prevent counsel for reasonable actual out-of-pocket expense incurred by the Indemnified Party as indemnifying party from also representing the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claimindemnified party, the Indemnified Party indemnified party shall have the right to select separate counsel to participate in the defense of such claim action on behalf of such indemnified party. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to the indemnified party pursuant to the provisions of such Sections 7(b) or (c) for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (1) the indemnified party shall have promptly employed counsel in accordance with the proviso of the preceding sentence, (2) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after the notice of the commencement of the action, or (3) the indemnifying party has authorized the employment of counsel for EXHIBIT 2.2 the indemnified party at its own expense.
(d) If a claim, whether between the parties or by a third expense of the indemnifying party. No indemnifying party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-such claim or litigation, shall, except with the consent of each indemnified party claim(such consent not to be unreasonably withheld), consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the Indemnifying Party shall be bound by the results obtained release from all liability in good faith by the Indemnified Party with respect to such claimclaim or litigation.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification If a Company Event of Breach or a Wexford Event of Breach (a "Party's Event of Breach") occurs or is alleged and either the Company or the Wexford Indemnitees (a "Party Indemnitee") asserts that the other party has become obligated to it pursuant to Section 7.1 or 7.2, or if any claim is begun, made or instituted as a result of which the other party may become obligated to a Party Indemnitee hereunder, such Party Indemnitee shall be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give prompt notice to the other party. The Party Indemnitee shall permit the other party from whom (at its expense) to assume the indemnification is claimed (the “Indemnifying Party”) defense of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, however, that (a) the counsel for the other party who shall conduct the defense shall be reasonably satisfactory to the Party Indemnitee, (b) the Party Indemnitee may participate in such defense at its expense, and (c) the omission by the Party Indemnitee to give notice as provided herein shall not relieve the other party of its indemnification obligation except to the extent that such omission results in a failure of actual notice to the other party and the other party is materially damaged as a result of such failure to give notice. Except with the prior written consent of the Party Indemnitee, the other party shall not, in the defense of any such claim, consent to entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Party Indemnitee or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Party Indemnitee of a release from all liability with respect to such claim or litigation. In the event that the amount held Party Indemnitee shall in escrow to secure Sellers’ indemnification good faith determine that the conduct of Buyer shall be paid in satisfaction the defense of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect subject to indemnification hereunder or any proposed settlement of any such claim by a third the other party as might be expected to which affect adversely the Indemnified ability of the Party is entitled Indemnitee to indemnification hereunderconduct its business, or that the Party Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the other party in respect of such claim relating thereto, the Indemnifying Party Indemnitee shall have the right at its own expense all times to participate in or, if it so elects, to take over and assume control over the defense, settlement, negotiations or litigation relating to any such claim at the sole cost of the defense of such claim, other party (including without limitation reasonable attorneys' fees and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party disbursements and other amounts paid as the result of a request by such claim); provided, however, that if the Indemnifying Party Indemnitee does so take over and assume control, the Party Indemnitee shall not settle such claim without the prior written consent of every other party, such consent not to so cooperatebe unreasonably withheld. If In the Indemnifying Party elects to assume control of event that every other party does not accept and continue the defense of any third-party claimmatter as provided above, the Indemnified Party Indemnitee shall have the full right to participate in the defense of defend against any such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party and shall be bound by the results obtained entitled to settle or agree to pay in good faith by the Indemnified Party with respect to full such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Sources: Restructuring Agreement (Wahlco Environmental Systems Inc)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The No party claiming hereto will be liable for any Claim for indemnification under this Article IX unless written notice of a Claim for indemnification is delivered by the party seeking indemnification (the “Indemnified Party”) shall promptly give notice to the party Party from whom the indemnification is claimed sought (the “Indemnifying Party”) prior to the expiration of the applicable survival period, if any, set forth in Section 9.1. If any claim whether between third party notifies the parties or brought by Indemnified Party with respect to any matter which may give rise to a Claim for indemnification (a “Third Party Claim”) against the Indemnifying Party under this Article IX, then the Indemnified Party will notify the Indemnifying Party promptly thereof in writing and in any event within 15 days after receiving notice from a third party against party; provided that no delay on the part of the Indemnified Party in notifying the Indemnifying Party will relieve the Indemnifying Party from any obligation hereunder unless the Indemnifying Party is prejudiced thereby. All notices given pursuant to this Section 9.4 will describe with reasonable specificity the Third Party Claim and the basis of the Indemnified Party, specifying (i) the factual basis ’s Claim for such claim, and (ii) the amount of the claimindemnification. If a claim relates to an action, suit, or proceeding filed by a third party against Once the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Party, the Indemnifying Party will be entitled to participate therein and, to the extent desired, to assume the defense thereof with counsel of its choice, provided, however, the Indemnified Party may participate (but not control) such defense and after notice shall of its election to assume the defense thereof, the Indemnifying Party will not be given liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party to in connection with the defense of the Third Party Claim, other than reasonable costs of investigation, unless the Indemnifying Party within ten (10) days after written does not actually assume the defense thereof following notice of such actionelection. If the Indemnifying Party does not assume the defense of such Third Party Claim, suitthe Indemnified Party will have the right to undertake the defense of such Third Party Claim, by counsel or proceeding shall have been given other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the Indemnified limitations on the Indemnifying Party’s obligations to indemnify otherwise set forth in this Article IX and to the right of the Indemnifying Party to assume the defense of or opposition to such Third Party Claim at any time prior to settlement, compromise or final determination thereof).
(b) Following receipt of notice from Neither the Indemnified Party of a claim, nor the Indemnifying Party shall have thirty (30) days in which will consent to make such investigation the entry or any judgment or enter into any settlement of any Third Party Claim that might give rise to liability of the claim as the Indemnifying other Party shall deem necessary under this Article IX without such Party’s consent, which will not be unreasonably withheld or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperatedelayed. If the Indemnifying Party elects to assume control of the defense of settle any third-party claimsuch Third Party Claim, and the Indemnified Party shall have refuses to consent to such compromise or settlement, then the right to participate in the defense liability of such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, Indemnified Party will be limited to the amount offered by the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claimcompromise or settlement.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Procedures for Indemnification. The procedures for Any Indemnitee entitled to indemnification pursuant to this IP Agreement shall be as follows:
notify the Indemnifying Party in writing, and in reasonable detail, of the applicable Third Party Claim promptly (aand in any event within 10 business days) The party claiming 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 (the “Indemnified Party”) shall promptly give notice provided hereunder except to the party from whom extent the indemnification is claimed Indemnifying Party shall have been 6 47 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 10 business days) after the Indemnitee's receipt thereof, copies of any claim whether between all notices and documents (including court papers) received by the parties or brought by a third party against Indemnitee relating to the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claimThird Party Claim. If a claim relates to Third Party Claim is made against an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claimIndemnitee, the Indemnifying Party shall have thirty (30) days be entitled to participate in which the defense thereof and, if it so chooses and acknowledges in writing its obligation to make indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided that such investigation of counsel is not reasonably objected to by the claim as Indemnitee. Should the Indemnifying Party shall deem necessary or desirable. For so elect to assume the purposes defense of such investigation, the Indemnified a Third Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such noticeClaim, the Indemnifying Party shall immediately pay not be liable to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement Indemnitee for reasonable actual out-of-pocket expense legal or other expenses subsequently incurred by the Indemnified Party as Indemnitee in connection with the result of a request by the Indemnifying Party to so cooperatedefense thereof. If the Indemnifying Party elects to assume control of the defense of any third-party claimassumes such defense, the Indemnified Party Indemnitee shall have the right to participate in the defense of such claim 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 have full control of 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 (d) If a claim, whether between other than during the parties or by a third party, requires immediate action, period prior to the parties will make all reasonable efforts to reach a decision with respect thereto time the Indemnitee shall have given notice of the Third Party Claim as expeditiously as possible.
(e) provided above). If the Indemnifying Party does not elect so elects to assume control or otherwise participate in the defense of any third-party claimThird Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim and making employees available on a mutually convenient basis to provide additional information of any material provided hereunder. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld); 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 in writing 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 shall have assumed the defense of 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 and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim. 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 Third Party 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 bound by entitled to assume the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates defense of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Partyportion relating to money damages.
Appears in 1 contract
Sources: Agreement and Plan of Distribution (Itt Destinations Inc /Nv)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The If any party claiming the shall seek indemnification with respect to any Loss or potential Loss arising from a claim asserted by a third party (including a notice of Tax audit or request to waive or extend a statute of limitations applicable to any Tax) for which such party seeking indemnification (the “Indemnified Party”) is entitled to indemnification under this ARTICLE 9, then the Indemnified Party shall promptly give notice to notify the other party from whom the indemnification is claimed (the “Indemnifying Party”) in writing; provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party (except to the extent notice is not received prior to the expiration of the applicable expiration provision contained in Section 9.1) shall relieve Indemnifying Party from any obligation hereunder unless (and then solely to the extent that) Indemnifying Party is prejudiced thereby.
(b) An Indemnifying Party will have the right to defend the Indemnified Party against the claim whether between the parties or brought by a third party against with counsel of its choice, reasonably satisfactory to the Indemnified Party, specifying so long as (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against Indemnifying Party notifies the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party in writing, within ten (10) days after written the Indemnified Party has given notice of such actionthe claim, suitthat the Indemnifying Party will satisfy its indemnification obligations to the extent required under this ARTICLE 9, or proceeding shall have been given (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party.
Party that the Indemnifying Party will have the financial resources to defend against the claim and to fulfill its indemnification obligations hereunder, (biii) Following receipt the claim involves only money damages and does not seek injunctive or other equitable relief; (iv) settlement of, or an adverse judgment with respect to, the claim is not, in the reasonable and good faith judgment of notice from the Indemnified Party likely to establish a precedential custom or practice or result in an outcome that is materially adverse to the continuing business interests of a claim, the Indemnified Party; and (v) the Indemnifying Party shall have thirty (30) days in which to make such investigation conducts the defense of the claim actively, diligently and completely. So long as the Indemnifying Party shall deem necessary or desirable. For is conducting the purposes defense of such investigationthe claim in accordance with this Section 9.5(b), (A) the Indemnified Party agrees may retain separate co-counsel at its sole cost and expense and participate in the defense of the claim, (B) the Indemnified Party will not consent to make available the entry of any judgment or enter into any settlement with respect to the claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, and (C) the Indemnifying Party and/or its authorized representative(s) will not consent to the information relied upon by entry of any judgment or enter into any settlement with respect to the claim without the prior written consent of the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does which consent shall not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is)unreasonably withheld.
(c) With respect to In the event any claim by a third party as to which of the conditions of Section 9.5(b) above is or becomes unsatisfied, however, (i) the Indemnified Party is entitled may defend against, and consent to indemnification hereunderthe entry of any judgment or enter into any settlement with respect to, the Indemnifying Party shall have the right at its own expense to participate claim in or, if any manner it so elects, to assume control of the defense of such claim, may deem appropriate (and the Indemnified Party shall cooperate fully with need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (ii) the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by Party will reimburse the Indemnified Party as promptly and periodically for the result costs of a request by defending against the claim (including attorneys’ fees and expenses reasonably incurred), and (iii) the Indemnifying Party will remain responsible to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, indemnify the Indemnified Party shall have to the right to participate in the defense of such claim at its own expenseextent required under this ARTICLE 9.
(d) If a The parties to this Agreement shall execute such powers of attorney as may be necessary or appropriate to permit participation of counsel selected by any party hereto and, as may be reasonably related to any such claim, whether between shall provide access to the parties or by a third partycounsel, requires immediate actionaccountants, the parties and other representatives of each party during normal business hours to all properties, personnel, books, Tax records, contracts, commitments and all other business records of such other party and will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect furnish to such claim.
other party copies of all documents as may reasonably be requested (f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.certified if requested)
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Aldila Inc)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming Promptly following the receipt by a Person entitled to indemnification under this Article VIII (the an “Indemnified Party”) shall promptly give of notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties a demand, claim, action, assessment or proceeding made or brought by a third party against party, including a Governmental Authority (a “Third Party Claim”), and promptly upon an Indemnified Party becoming aware of the Basis of a claim for Damages, such Indemnified Party, specifying : (i) shall notify the factual basis for Seller, or the Buyer, as applicable (each, an “Indemnifying Party”), of such claim’s existence, setting forth the facts and circumstances in connection with which such Indemnified Party has received such notice or become aware of such Basis; and (ii) specifying the amount basis hereunder upon which the Indemnified Party’s claim for indemnification is asserted; provided, however, that a failure to provide prompt notification shall not prevent or prejudice a claim under this Article VIII except to the extent such failure has prejudiced the rights or defenses of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the The Indemnified Party shall, upon reasonable notice by the Indemnifying Party, tender the defense of a claim, Third Party Claim to the Indemnifying Party. If the Indemnifying Party shall have thirty (30) days in which to make such investigation accepts responsibility for the defense of the claim as the Indemnifying a Third Party shall deem necessary or desirable. For the purposes of such investigationClaim, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, then the Indemnifying Party shall have the right to contest, defend and litigate the Third Party Claim and shall have the exclusive right, in its discretion exercised in good faith and upon the advice of counsel, and subject to the consent of the Indemnified Party (which shall not be unreasonably withheld) to settle any such matter, either before or after the initiation of litigation, provided that at least ten (10) days prior to any such settlement, they shall give written notice of their intention to settle to the Indemnified Party. The Indemnified Party shall have the right to be represented by counsel at its own expense in any defense conducted by the Indemnifying Party.
(c) Notwithstanding the foregoing, in connection with any settlement negotiated by the Indemnifying Party, no Indemnified Party shall be required to: (i) enter into or be bound by or obligated under any settlement (A) that does not include the delivery by the claimant or plaintiff to participate the Indemnified Party of a release from all liability in orrespect of such claim or litigation, (B) if it so electsthe Indemnified Party shall, in writing to assume control of the Indemnifying Party within the ten (10) day period prior to such proposed settlement, unreasonably withhold its consent with respect to such settlement proposal as contemplated by Article VIII, and desire to have the Indemnifying Party tender the defense of such claimmatter back to the Indemnified Party, and or (C) that requires an Indemnified Party to take any unreasonable affirmative actions as a condition of such settlement; or (ii) consent to the entry of any judgment that does not include a full dismissal of the litigation or proceeding against the Indemnified Party; provided, however, that should the Indemnified Party disapprove of a settlement proposal pursuant to clause (i)(B) above, the Indemnified Party shall cooperate fully with thereafter have all of the Indemnifying Partyresponsibility for defending, subject contesting and settling such Third Party Claim but shall not be entitled to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request indemnification by the Indemnifying Party to so cooperate. If the extent that, upon final resolution of such Third Party Claim, the Indemnifying Party’s liability to the Indemnified Party but for this proviso exceeds what the liability to the Indemnified Party would have been if the Indemnified Party were permitted to settle such Third Party Claim in the absence of the Indemnified Party exercising its right under clause (i)(B) above.
(d) If, in accordance with the foregoing provisions of this Article VIII, an Indemnified Party shall be entitled to indemnification against a Third Party Claim, and if the Indemnifying Party elects shall fail to assume control of accept the defense of any third-party claima Third Party Claim which has been tendered in accordance with this Section 8.5, the Indemnified Party shall have the right right, without prejudice to participate its rights of indemnification hereunder, in its discretion exercised in good faith and upon the defense advice of counsel, to contest, defend and litigate such Third Party Claim, and may settle such Third Party Claim, either before or after the initiation of litigation, at such time and upon such terms as the Indemnified Party deems fair and reasonable, provided at least ten (10) days prior to any such settlement, written notice of its intention to settle is given to the Indemnifying Party. If, pursuant to this Section 8.5, the Indemnified Party defends or settles a Third Party Claim for which it is entitled to indemnification hereunder, as hereinabove provided, the Indemnified Party shall be reimbursed by the Indemnifying Party for the reasonable attorneys’ fees, expert fees and other expenses of defending the Third Party Claim which are incurred from time to time, forthwith following the presentation to Indemnifying Party of itemized bills for said attorneys’ fees, court costs and other expenses. No failure by the Indemnifying Party to acknowledge in writing its indemnification obligations under this Section 8.5 shall relieve it of such claim at its own expense.
(d) If a claim, whether between obligations to the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possibleextent they exist.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying The Indemnified Party shall be bound use commercially reasonable efforts to seek recovery from any insurance policies owned by any Target as of the results obtained in good faith by the Indemnified Party Closing Date with respect to such claimany Damages eligible for reimbursement under said insurance policies.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Ambassadors International Inc)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claimTHIRD PARTY CLAIMS. If a claim relates or demand is made against an NMR Indemnitee or a IMS HEALTH Indemnitee (each, an "Indemnitee") by any person who is not a party to an actionthis Agreement (a "Third Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement, suitsuch Indemnitee shall notify the party which is or may be required pursuant to Section 3.1 or Section 3.2 hereof to make such indemnification (the "Indemnifying Party") in writing, or proceeding filed 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 third party against result of such failure (except that the Indemnified Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice notice). Thereafter, the Indemnitee shall be given by the Indemnified Party deliver to the Indemnifying Party Party, promptly (and in any event within ten five business days) after the Indemnitee's receipt thereof, copies of all notices and documents (10including court papers) days after written notice of such action, suit, or proceeding shall have been given received by the Indemnitee relating to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Third Party of Claim. If a claimThird Party Claim is made against an Indemnitee, the Indemnifying Party shall have thirty be entitled to participate in the defense thereof and, if 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 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, within 30 days (30) days in which to make such investigation or sooner if the nature of the claim as Third Party Claim so requires), notify the Indemnitee of its intent to do so, and the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available thereafter not be liable to the Indemnifying Party and/or its authorized representative(s) the information relied upon Indemnitee for legal or other expenses subsequently incurred by the Indemnified Party to substantiate Indemnitee in connection with the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension defense thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; providedPROVIDED, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party such Indemnitee shall have the right at its own expense to participate employ counsel to represent such Indemnitee if, in orsuch Indemnitee's reasonable judgment, if it so elects, to assume control a conflict of the defense interest between such Indemnitee and such Indemnifying Party exists in respect of such claimclaim which would make representation of both such parties by one counsel inappropriate, and in such event the Indemnified Party fees and expenses of such separate counsel shall cooperate fully with the be paid by such Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claimassumes such defense, the Indemnified Party Indemnitee shall have the right to participate in the defense thereof and to employ counsel, subject to the proviso of such claim the preceding sentence, 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 (d) If a claim, whether between other than during the parties or by a third party, requires immediate action, period prior to the parties will make all reasonable efforts to reach a decision with respect thereto time the Indemnitee shall have given notice of the Third Party Claim as expeditiously as possible.
(e) provided above). If the Indemnifying Party does not elect so elects to assume control or otherwise participate in the defense of any third-party claimThird Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof, including by providing or causing to be provided, Records and witnesses as soon as reasonably practicable after receiving any request therefor from or on behalf of the Indemnifying Party. If the Indemnifying Party acknowledges in writing responsibility 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; 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 and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee; PROVIDED, HOWEVER, that the Indemnitee may refuse to agree to any such 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 settlement, compromise or discharge. If an Indemnifying Party elects not to assume the defense of a Third Party Claim, or fails to notify an Indemnitee of its election to do so as provided herein, such Indemnitee may compromise, settle or defend such Third Party Claim. 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 bound entitled to assume the defense of the portion relating to money damages.
(b) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the results obtained place of such Indemnitee as to any events or circumstances in good faith by the Indemnified Party with respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
(fc) The indemnification rights remedies provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties Article III shall be made cumulative and shall not preclude assertion by any Indemnitee of any other rights or the seeking of any and through the Indemnified all other remedies against any Indemnifying Party.
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification A Person who may be entitled to be indemnified and held harmless under Section 3.2 or Section 3.3 (the “Indemnified Party”) ), shall promptly give notice to notify (but in any event within thirty (30) days) the party from whom the indemnification Party that is claimed potentially liable therefor (the “Indemnifying Party”) in writing of any claim whether between the parties pending or brought threatened claim, investigation, proceeding or demand by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against Third Party that the Indemnified Party has determined has given or could reasonably give rise to such notice shall be given a right under this Agreement (including a pending or threatened claim or demand asserted by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.a Third
(b) Following receipt of a notice of a Third-Party Claim from the an Indemnified Party of a claimpursuant to Section 3.4(a), the Indemnifying Party shall have may assume the defense and control of such Third-Party Claim by delivery of written notice to the Indemnified Party, and if it does not assume the defense of such Third-Party Claim, to participate in the defense of any Third-Party Claim in accordance with the terms of Section 3.5 at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, that is reasonably acceptable to the Indemnified Party, within thirty (30) days in which to make of receipt of an indemnification notice of from such investigation of the claim as Indemnified Party; provided that the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume or maintain control of the defense of any thirdThird-party claim, Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party to the extent (i) in the reasonable judgment of the Indemnified Party, after consultation with outside counsel, there exists a conflict of interest between the Indemnifying Party and the applicable Indemnified Party in the defense of such Third- Party Claim by the Indemnifying Party, (ii) the Third-Party Claim is a criminal proceeding, action, indictment, allegation or investigation against the Indemnified Party or (iii) the Third-Party Claim seeks injunctive or other non-monetary relief that, if granted, would reasonably be expected to have a material and adverse effect on the Indemnified Party’s business.
(c) The Indemnified Party may take any actions reasonably necessary to defend such Third-Party Claim prior to the time that it receives a notice from the Indemnifying Party as contemplated by Section 3.4(b). If the Indemnifying Party assumes the defense of any Third-Party Claim, the Indemnifying Party shall have allow the right Indemnified Party a reasonable opportunity to participate in the defense of such claim Third-Party Claim with its own counsel and at its own expense., and the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof (it being understood and agreed that even if the Indemnified Party participates in the defense of such a Third-Party Claim, the Indemnifying Party shall control the defense and all decisions with respect thereto). Remainco or Spinco, as the case may be, shall, and shall use their reasonable best efforts to, and to cause their Affiliates and Representatives to, cooperate fully with the Indemnifying Party in the defense of any Third-Party Claim. Without limiting the generality of the foregoing, from and after the delivery of a notice of a claim for indemnification, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its Representatives reasonable access, during normal business hours, to the books, records, personnel
(d) If a claimNo Indemnifying Party shall have any liability under this Article III for any Losses arising out of or in connection with any Third-Party Claim that is settled or compromised by an Indemnified Party without the prior consent of such Indemnifying Party (such consent not to be unreasonably withheld, whether between the parties conditioned or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possibledelayed).
(e) If an Indemnified Party wishes to make a claim under this Article III that does not involve a Third-Party Claim, the Indemnified Party shall give written notice to the Indemnifying Party does not elect to assume control or otherwise participate in setting forth (i) a reasonably detailed description of the defense of any third-party claim, (ii) a good faith estimate of the amount of the claim (to the extent ascertainable) and (iii) the specific provision of this Agreement that the Indemnified Party alleges to be breached (or other category of indemnification into which the Loss fits), and such notice shall be accompanied by copies of all documentation available to the Indemnified Party that may be necessary or appropriate for the purposes of enabling the Indemnifying Party shall to be bound by the results obtained in good faith by the Indemnified Party informed and to take any and all appropriate decisions and actions with respect to the matter and Loss that is the subject of the claim; provided that the failure to provide such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof notice on a timely basis shall extend not release the Indemnifying Party from any of its obligations under this Article III except to the shareholders, directors, officers and Affiliates of extent the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims Indemnifying Party is actually prejudiced by such parties failure. Reasonable and documented out-of-pocket expenses incurred by current or former Representatives of a Party or another member of such Party’s Group (but in no event any compensation expenses of current employees of a Party or another member of a Party’s Group) in connection with another Party’s access to them shall be made reimbursed by and through such other Party promptly following such other Party’s receipt of an invoice specifying in reasonable detail the Indemnified Partyexpenses incurred.
Appears in 1 contract
Sources: Separation and Sale Agreement (Everi Holdings Inc.)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim11.5.1. If a claim relates to or demand is made against any member of the Sellers Group or the Parent Group (each an action, suit"INDEMNITEE"), or proceeding filed an Indemnitee shall otherwise learn of an assertion, by any Person who is not a third party against to this Agreement (and who is not an Affiliate of a party to this Agreement) (a "THIRD PARTY CLAIM") as to which a party (the Indemnified Party "INDEMNIFYING PARTY") may be obligated to provide indemnification pursuant to this Agreement, such notice shall be given by the Indemnified Party to Indemnitee will notify the Indemnifying Party within ten (10) days in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after written notice becoming aware of such actionThird Party Claim; PROVIDED, suitHOWEVER, or proceeding shall have been given that failure to give any such notification will not affect the indemnification provided hereunder except to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, extent the Indemnifying Party shall have thirty been actually and materially prejudiced as a result of such failure. It is hereby clarified that in case the Third Party Claim is based on Sections 11.2.1 or 11.2.2 or 11.2.4, 11.4.1 or 11.4.2, then the obligations set forth in this Section 11.5 shall apply to the Indemnifying Party solely in case such Third Party Claim is initiated during a period of 18 months following the Closing Date and the notice of such Third Party Claim is provided by the Indemnitee to the Indemnifying Party (30) days and to the Escrow Agent, if applicable), other than claims for fraud.
11.5.2. If a Third Party Claim is made against an Indemnitee, and the Indemnifying Party agrees in which writing to make such investigation indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the claim Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elects to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party shall deem necessary or desirable. For diligently conducts such defense; PROVIDED that, if (i) in opinion of a legal counsel of the purposes Indemnitee a conflict of interest exists in respect of such investigation, the Indemnified claim or (ii) any Indemnifying Party agrees fails to make available provide reasonable assurance to the Indemnifying Party and/or its authorized representative(sIndemnitee (upon request of the Indemnitee) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claimIndemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, or if such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party does not respond to such notice, Party; provided that the Indemnifying Party shall immediately pay not be required to bear the Indemnified Party the full amount fees and expenses of the claim; provided, that the amount held in escrow more than one counsel to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperateall Indemnitees. If the Indemnifying Party elects to assume control of assumes the defense of any third-party claimsuch Third Party Claim, the Indemnified Party shall Indemnitee will have the right to participate in the defense of such claim thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for the reasonable fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including the agreement by each Indemnifying Party to indemnify the Indemnitee as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee reasonable updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, the Indemnitee will fully cooperate with the Indemnifying Party in the defense thereof if requested by the Indemnifying Party (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
11.5.3. No Indemnifying Party will consent to any settlement, compromise or discharge (dincluding the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent, which will not be unreasonably withheld; PROVIDED, that if the Indemnifying Party agrees to indemnify the Indemnitee for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which unconditionally and irrevocably releases the Indemnitee (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim; PROVIDED, HOWEVER, that the Indemnitee may refuse to agree to any such settlement, compromise or discharge that provides for injunctive or other non-monetary relief adversely affecting the Indemnitee. If an Indemnifying Party agrees to indemnify the Indemnitee for a Third Party Claim, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
11.5.4. Notwithstanding anything to the contrary in Sections 11.5.1 to 11.5.3 above, if a claim is made by any Tax authority which, if successful, is likely to result in an indemnity payment to any member of the Parent Group pursuant to Section 11.2.4, Parent shall notify the Company of such claim (a "TAX CLAIM"), stating the nature and basis of such claim and the amount thereof, to the extent known. Failure to give such notice shall not relieve the Company from any liability which it may have on account of this indemnification, except to the extent that the Company is actually materially prejudiced thereby. The Company shall have the right, at its option, to participate in, but not control, the defense of such Tax Claim and to employ counsel of its choice, at its own cost and expense. The Sellers and Purchasers shall fully cooperate with each other in contesting any such Tax Claim, which cooperation shall include the retention and, upon the request of the respective party, the provision of records and information which are reasonably relevant to such Tax Claim and making representatives thereof available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder. The Purchasers shall deliver at least ten (10) Business Days prior to the due date (taking into account any extension) for the filing of any Tax Returns, Tax exemption requests or similar filings to be made by the Purchasers in connection with the transactions contemplated hereunder, to the Company for review and comment and shall consider such comments in good faith. The Purchasers will promptly supply to the Company copies of all correspondence and documents relating to or in connection with such Tax Claim or any such Tax Returns, Tax exemption requests or similar filings, and keep the Company fully informed of all developments relating to or in connection therewith (including, without limitation, providing to the Company reasonable updates and summaries as to the status thereof).
11.5.5. Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party is reasonably expected to be prejudiced as a result of such failure. Any notice pursuant to this Section 11.5 will contain a statement, in prominent and conspicuous type, that if the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, whether between the parties or by claim will be conclusively deemed a third party, requires immediate action, liability of the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) Indemnifying Party. If the Indemnifying Party does not elect notify the Indemnitee prior to assume control the expiration of a 30-calendar-day period following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnitee under this Agreement, such claim specified by the Indemnitee in such notice will be conclusively deemed a liability of the Indemnifying Party under this Agreement and the Indemnifying Party shall pay (with respect to the Sellers Group out of the Escrow Fund; except with respect to claims raising out of circumstances specified in Section 11.2.3 above or otherwise participate claims for fraud, which can be made from the Escrow Fund or otherwise) the amount of Damages subject to such claim to the Indemnitee on demand or, in the defense case of any third-party notice in which the amount of the Damages subject to such claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such Damages subject to such claim, as provided above, the Indemnifying Party shall be bound by and the results obtained Indemnitee will proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the Indemnified 30th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will be free to pursue such remedies as may be available under this Agreement or applicable Law.
11.5.6. Notwithstanding anything to the contrary in this Section 11.5, any indemnification to be paid by to the Parent Group by Sellers shall be made out of the Escrow Fund up to the funds then existing in the Escrow Fund (with respect to such claim.
(fclaims related to Sections 11.2.1 and 11.2.2 and 11.2.4) The indemnification rights provided and in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of accordance with the procedures specified in Section 11.3.1 through 11.3.7 and the limitations set forth in this Section 12.411.6, any provided nothing herein shall limit the indemnification rights of the Parent Group for indemnification under Section 11.2.3 or claims by such parties shall be made by and through the Indemnified Partyfor fraud.
Appears in 1 contract
Procedures for Indemnification. The following procedures for shall govern and be a condition to the indemnification shall be as followsobligations arising out of this Section 6.7:
(ai) The party claiming the indemnification (the “Upon receipt by an Indemnified Party”) shall promptly give Party of notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to an action, suit, proceeding, claim, demand or proceeding filed by assessment from a third party against which may give rise to a claim for indemnification from the Indemnifying Party, the Indemnified Party such shall give prompt, written notice shall be given by the Indemnified Party thereof to the Indemnifying Party within ten (10) days after written notice indicating in reasonable detail the nature of such actionclaim and the basis therefor, suit, or proceeding provided that the failure to give such notice shall have been given not be a condition to the indemnification obligations hereunder except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. The Indemnifying Party shall be entitled to assume and control such defense at its expense with counsel selected by it and reasonably acceptable to the Indemnified Party. The Indemnified Party shall be entitled to participate therein at its own expense after such assumption.
(bii) Following receipt of notice from the Indemnified Party of a claim, With respect to third party claims or actions as to which the Indemnifying Party shall not have exercised its right to assume the defense thereof within a reasonable amount of time (but not more than thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigationafter notice), the Indemnified Party agrees to make available shall assume and control the defense of and contest such action with such counsel as the Indemnified Party may choose that is reasonably acceptable to the Indemnifying Party. The Indemnifying Party and/or shall be entitled, at its authorized representative(s) own expense, to participate in the information relied upon by defense of any such action or claim. In the event the Indemnifying Party elects not to participate in the defense of such action or claim, the Indemnified Party shall have full rights to substantiate dispose of such action and enter into any compromise or settlement; provided that such compromise or settlement shall be reasonable under the claim. If circumstances and in good faith.
(iii) Both the Indemnified Party and the Indemnifying Party agree at shall cooperate with one another in good faith in connection with the defense, compromise or settlement of any third party claim or action. Neither shall dispose of, compromise or settle any such claim or action in a manner without the prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount written consent of the claim; providedother party, that the amount held in escrow to secure Sellers’ indemnification of Buyer which consent shall not be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is)unreasonably withheld.
(civ) With respect to any claim by claim, other than a third party as to claim or action, for which the Indemnified Party is entitled to indemnification indemnity may be sought hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have give prompt, written notice thereof to the right to participate Indemnifying Party indicating in reasonable detail the defense nature of such claim at its own expenseand the basis therefor.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Sources: Merger Agreement (Ensys Environmental Products Inc /De/)
Procedures for Indemnification. The procedures for indemnification obligations and liabilities of the parties with respect to an Indemnification Claim shall be as followssubject to the following terms and conditions:
(ai) The party claiming the indemnification (the “Indemnified Party”) An Indemnification Claim shall promptly give be made by a Viewlocity Indemnitee by delivery of a written notice to the party Nexstep Indemnitors requesting indemnification from whom the Nexstep Indemnitors and specifying the basis on which indemnification is claimed sought and the amount of asserted Losses and, in the case of a Third Party Claim, containing (the “Indemnifying Party”by attachment or otherwise) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and other information as such Indemnitee shall have concerning such Third Party Claim.
(ii) An Indemnification Claim shall be made by the Nexstep Indemnitees by delivery of a written notice to the Viewlocity Indemnitors Representative requesting indemnification and specifying the basis on which indemnification is sought and the amount of asserted Losses and, in the claim. If case of a claim relates to an actionThird Party Claim, suit, containing (by attachment or proceeding filed by a third party against the Indemnified Party otherwise) such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of other information as such action, suit, or proceeding Indemnitee shall have been given to the Indemnified Partyconcerning such Third Party Claim.
(biii) Following receipt of notice from If the Indemnified Indemnification Claim involves a Third Party of a claimClaim, the Indemnifying procedures set forth in Section 7.5 hereof shall also be observed by the Indemnitee and the Indemnitor or Viewlocity Indemnitors Representative, as applicable.
(iv) If the Indemnification Claim involves a matter other than a Third Party Claim, the Indemnitor or Viewlocity Indemnitors Representative, as applicable, shall have thirty (30) days in which to make such investigation after receipt by the Indemnitor or the Viewlocity Indemnitors Representative of written notice of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes Indemnification Claim to object to such Indemnification Claim by delivery of a written notice of such investigation, objection to such Indemnitee specifying in reasonable detail the Indemnified Party agrees basis for such objection (a "Counter Notice"). Failure to make available to object timely shall constitute a final and binding acceptance of the Indemnifying Party and/or its authorized representative(s) the information relied upon Indemnification Claim by the Indemnified Party to substantiate Indemnitor or Viewlocity Indemnitors Representative on behalf of all the claim. If the Indemnified Party subject Indemnitor(s), and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer Indemnification Claim shall be paid in satisfaction accordance with subsection (v) hereof. In the case of any claim payable by Sellers until that amount an Indemnification Claim with respect to which a Counter Notice is exhausted timely delivered, the Indemnitor and the Viewlocity Indemnitors Representative shall use good faith efforts such dispute amicably over a fifteen (if it is)15) day period following receipt of the Counter Notice. If the dispute cannot be amicably resolved during such fifteen (15) day period, then either party may initiate arbitration of such dispute, which arbitration shall be handled in accordance with Section 7.12 below.
(cv) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control Upon determination of the defense amount of such claiman Indemnification Claim, whether by agreement between the Indemnitor or Viewlocity Indemnitors Representative, as applicable, and the Indemnified Party Indemnitee, or as determined by an arbitrator pursuant to Section 7.12 hereof, the Indemnitor(s) shall cooperate fully with pay the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result amount of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control such Indemnification Claim within ten (10) days of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of date such claim at its own expenseamount is determined.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim11.3.1. If a claim relates to or demand is made against any member of the Parent Group (each an action, suit"INDEMNITEE"), or proceeding filed an Indemnitee shall otherwise learn of an assertion, by any Person who is not a third party against to this Agreement (and who is not an Affiliate of a party to this Agreement) (a "THIRD PARTY CLAIM") as to which a party (the Indemnified Party "INDEMNIFYING PARTY") may be obligated to provide indemnification pursuant to this Agreement, such notice shall be given by the Indemnified Party to Indemnitee will notify the Indemnifying Party within ten (10) days in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after written notice becoming aware of such actionThird Party Claim; PROVIDED, suitHOWEVER, or proceeding shall have been given that failure to give any such notification will not affect the indemnification provided hereunder except to the Indemnified Partyextent (i) that the Indemnifying Party it has been actually and materially prejudiced as a result of such failure or (ii) such claim is submitted after the Survival Date.
(b) Following receipt of notice from 11.3.2. If a Third Party Claim is made against an Indemnitee and the Indemnified Indemnifying Party of a claimagrees in writing to indemnify the Indemnitee therefor, the Indemnifying Party shall have thirty will be entitled to assume the defense thereof (30) days in which to make such investigation at the expense of the claim Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party shall deem necessary or desirable. For the purposes diligently conducts such defense; PROVIDED that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such investigation, the Indemnified claim or (ii) any Indemnifying Party agrees fails to make available provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claimprovided, or that if the Indemnifying Party does not respond to is the Company, and such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer payments shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it islimited to and disbursed from the Escrow Funds).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of assumes the defense of any third-party claimsuch Third Party Claim, the Indemnified Party shall Indemnitee will have the right to participate in the defense of such claim thereof and to employ counsel, at its own expense.
(d) If a claim, whether between separate from the parties or counsel employed by a third party, requires immediate action, the parties Indemnifying Party. The Indemnifying Party will make all be liable for the reasonable efforts and documented fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to reach a decision with respect thereto as expeditiously as possible.
(e) assume the defense thereof. If the Indemnifying Party does not elect to assume control or otherwise participate in assumes the defense of any third-party claimsuch Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all material developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, the Indemnitee will reasonably cooperate with the Indemnifying Party in the defense thereof if requested by the Indemnifying Party (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
11.3.3. No Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent, which will not be unreasonably withheld; PROVIDED, that if the Indemnifying Party agrees to indemnify the Indemnitee for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which unconditionally and irrevocably releases the Indemnitee (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim; PROVIDED, HOWEVER, that the Indemnitee's prior written consent (not to be unreasonably withheld, delayed or conditioned) is required for any such settlement, compromise or discharge that provides for injunctive or other non-monetary relief affecting the Indemnitee. The Indemnitee will not (unless required by Law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
11.3.4. Any claim on account of Damages which does not involve a Third Party Claim shall be bound asserted by written notice given by the results obtained Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent (i) that the Indemnifying Party shall have been actually prejudiced as a result of such failure or (ii) such claim is submitted after the Survival Date. The Indemnifying Party and the Indemnitee will proceed in good faith to negotiate a resolution of any such claim and, if not resolved through negotiations by the Indemnified Party with respect to 30th day after notice of such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend claim was given to the shareholders, directors, officers and Affiliates of the Indemnified Indemnifying Party, although for the purpose of Indemnifying Party and the procedures set forth in Indemnitee will be free to pursue such remedies as may be available under this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.Agreement. 51
Appears in 1 contract
Sources: Share Purchase and Sale Agreement (Nice Systems LTD)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
In the event that any Person (a) The party claiming the indemnification (the an “Indemnified Party”) entitled to indemnification under Section 9.1 or Section 9.2 is seeking such indemnification with respect to a Claim, such Indemnified Party shall promptly give notice to notify the party from whom the indemnification is claimed indemnifying Party (the “Indemnifying PartyIndemnitor”) in writing of such Claim in reasonable detail; provided, however, that failure to give such notification shall not affect the indemnification to be provided hereunder except to the extent the Indemnitor shall have been actually prejudiced as a result of such failure (except that the Indemnitor shall not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such notice). The Indemnitor shall manage and control, at its sole expense, the defense of the Claim and its settlement, subject to the provisions of this Section 9.3. The Indemnified Party shall provide the Indemnitor, at the Indemnitor’s cost, with reasonable assistance and relevant information to support the defense of any claim whether between such claim. The Indemnitor shall not accept any settlement which imposes liability not covered by this indemnification or imposes any obligation on, or otherwise adversely affects, or does not include an unconditional release from liability of the parties Indemnified Party or brought by a third party against other Party without the prior written consent of the Indemnified Party or other Party, as applicable. Nothing contained in this Section 9.3 shall oblige the Indemnified Party to take any action or steps in its own name in defending any claim, action or proceedings; however, the Indemnified Party, specifying at its option and expense, may review and comment on the defense of any claim through its own counsel; provided however that if: (i) the factual basis for Indemnitor and the Indemnified Party shall have mutually agreed to the retention of such claim, and counsel; (ii) the amount Indemnified Party shall have reasonably concluded that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnitor; or (iii) the named parties to any such proceeding (including the impleaded parties) include both the Indemnitor and the Indemnified Party, and representation of both parties by the same counsel would be inappropriate in the opinion of the claim. If a claim relates Indemnitor’s counsel due to an actionactual or potential differing interests between them; then, suitin any such case, or proceeding filed by a third party against one firm of attorneys separate from the Indemnified Party such notice shall Indemnitor’s counsel may be given retained by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to represent the Indemnified Party.
(b) Following receipt of notice from Parties at the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirableIndemnitor’s expense. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the The Indemnified Party shall cooperate fully in all reasonable respects with the Indemnitor in connection with any Claim and the defense or compromise thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnitor of records and information reasonably relevant to the Claim, subject making employees available on a mutually convenient basis to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense provide additional information, and explanation of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expensematerial provided under this Agreement.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Sources: Software Development and License Agreement (Volcano CORP)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the Any Person making a claim for indemnification (the under this ARTICLE VI is referred to herein as an “Indemnified Party”) shall promptly give notice to the party . The Person from whom the indemnification is claimed (sought is referred to herein as the “Indemnifying Party”) . Promptly after receiving notice of any Proceeding, investigation, demand or other claim whether between against the parties or brought Indemnified Party by a third party against (a “Third-Party Claim”), the Indemnified PartyParty shall provide written notice of such claim (any such written notice, specifying an “Indemnification Notice”) to: (i) the factual basis for such Parent subject to the indemnification claim, if the Third-Party Claim arises under Section 6.2 and (ii) the Shareholder, if the Third-Party Claim arises under Section 6.3. Each such Indemnification Notice shall describe in reasonable detail the applicable Third-Party Claim, including the facts giving rise to such claim for indemnification hereunder, the amount or method of computation of the amount of such claim (if known); provided, that the claimfailure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party is actually prejudiced by such failure. If a claim relates The Indemnified Party shall also provide such other information with respect thereto as the Indemnifying Party may reasonably request.
(b) Any Indemnifying Party shall be entitled to an actionparticipate in the defense of such Third-Party Claim at such Indemnifying Party’s expense, suit, or proceeding filed by a third party against and at its option shall be entitled to assume the defense thereof within ten (10) Business Days after receipt of the Indemnification Notice if the Indemnifying Party acknowledges in writing the Indemnifying Party’s obligation to indemnify the Indemnified Party against any Losses that may result from such notice Third-Party Claim and by appointing a reputable counsel reasonably acceptable to the Indemnified Party to be the lead counsel in connection with such defense; provided, that the Indemnified Party shall be given entitled to participate in the defense of such Third-Party Claim and to employ counsel of its choice for such purpose; provided, that the fees and expenses of such separate counsel shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this ARTICLE VII.
(c) Upon assumption of the defense of any such Third-Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of the Third-Party Claim, unless the Indemnifying Party consents in writing to such payment. Notwithstanding anything to the contrary herein, the Indemnifying Party shall not compromise or settle, or admit any Liability with respect to, any Third-Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), unless the relief (i) is not in respect of a Third-Party Claim for Taxes, (ii) consists solely of money damages (all of which the Indemnifying Party shall pay) and (iii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto.
(d) In all cases, the Indemnified Party shall provide its reasonable cooperation with the Indemnifying Party in defense of claims or litigation relating to Third-Party Claims, including by making employees, information and documentation reasonably available. If the Indemnifying Party shall not, within ten (10) Business Days of receiving the Indemnification Notice, notify the Indemnified Party that it shall assume the defense of any such Third-Party Claim, or fails to defend or withdraws from the defense of any such Third-Party Claim or the Indemnifying Party is the Shareholder and the claim(s) relate to or arise in connection with any Parent Defensible Matter, the Indemnified Party may defend against such matter in a manner consistent with the above provisions regarding conduct of the defense by the Indemnified Party; provided, that the Indemnified Party may not settle any such matter without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed). Any of following shall constitute a “Parent Defensible Matter”: (i) the claim for indemnification relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation, (ii) the Indemnified Party reasonably believes an adverse determination with respect to the Third-Party Claim would materially injure the Indemnified Party’s future business prospects; or (iii) the claim seeks an injunction or other equitable relief against the Indemnified Party.
(e) The Indemnified Party shall provide written notice of claim that is not a Third-Party Claim to: (i) the Parent, if such claim arises under Section 6.2 and (ii) the Shareholder, if such claim arises under Section 6.3. Such claim shall describe in reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount or method of computation of the amount of such claim (if known); provided, that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that (and only to the extent that) the Indemnifying Party is materially prejudiced by such failure. The Indemnified Party shall also provide such other information with respect thereto as the Indemnifying Party may reasonably request. If any dispute is not resolved within thirty (30) days after the Indemnified Party receives a dispute notice, then either of such parties can initiate an action pursuant to Section 7.10.
(f) Subject to this ARTICLE VI, within ten (10) days after written notice of such actionany final decision, suit, judgment or proceeding award shall have been given to rendered by a Governmental Authority with competent jurisdiction (and a resolution of any appeal therefrom and the Indemnified Party.
(b) Following receipt expiration of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days time in which to make such investigation of the claim as the Indemnifying Party appeal therefrom), or a settlement shall deem necessary have been consummated, or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree shall have arrived at a mutually binding agreement, in each case, with respect to a claim hereunder (i) if the claim for indemnification was brought pursuant to Section 6.2, the Parent shall pay or prior cause to be paid all sums due and owing to the expiration of said thirty Shareholder Indemnified Party in immediately available funds to an account specified by the Shareholder Indemnified Party and (30ii) day period (or any agreed upon extension thereof) if the claim for indemnification was brought pursuant to Section 6.3, the Parent and the Shareholder shall cause the Escrow Agent to pay to the validity Parent (payable by wire transfer of immediately available U.S. funds in accordance with the written payment instructions furnished by the Parent to the Escrow Agent), from the Escrow Amount, any sums due and amount of such claimowing in accordance with this ARTICLE VI, or and if the Indemnifying sums due and owing to the Parent Indemnified Party does not respond to such noticeexceed the remaining Escrow Amount, the Indemnifying Party shall immediately pay or cause to be paid all additional sums due and owing to the Parent Indemnified Party in immediately available funds to an account specified by the full Parent Indemnified Party. Any of the Escrow Amount remaining, net of any of the amount of any outstanding, unresolved claims of Losses brought pursuant to Section 6.3 (the claim; providedamounts set forth, that the amount held in escrow “Reserve Amounts”), shall automatically transfer to secure Sellers’ indemnification of Buyer the Shareholder and such funds shall be paid released and distributed to the Shareholder after the date that is eighteen (18) months following the Closing Date. The Reserve Amounts shall be disbursed by the Escrow Agent, promptly after the unresolved indemnification claims to which they relate are finally resolved in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim accordance with this ARTICLE VI as confirmed by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control joint written direction of the defense of such claim, Shareholder and the Indemnified Party shall cooperate fully with the Indemnifying PartyParent or a final, subject to reimbursement for reasonable actual outnon-of-pocket expense incurred by the Indemnified Party as the result appealable judgment of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control court of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expensecompetent jurisdiction.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claimTHIRD PARTY CLAIMS. If a claim relates or demand is made against a Media Information Indemnitee or a New Ceridian Indemnitee (each, an "Indemnitee") by any person who is not a party to an actionthis Agreement (a "Third Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement, suitsuch Indemnitee shall notify the party which is or may be required pursuant to Section 3.1 or Section 3.2 hereof to make such indemnification (the "Indemnifying Party") in writing, or proceeding filed 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 third party against result of such failure (except that the Indemnified Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice notice). Thereafter, the Indemnitee shall be given by the Indemnified Party deliver to the Indemnifying Party Party, promptly (and in any event within ten five business days) after the Indemnitee's receipt thereof, copies of all notices and documents (10including court papers) days after written notice of such action, suit, or proceeding shall have been given received by the Indemnitee relating to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Third Party of Claim. If a claimThird Party Claim is made against an Indemnitee, the Indemnifying Party shall have thirty be entitled to participate in the defense thereof and, if 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 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, within 30 days (30) days in which to make such investigation or sooner if the nature of the claim as Third Party Claim so requires), notify the Indemnitee of its intent to do so, and the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available thereafter not be liable to the Indemnifying Party and/or its authorized representative(s) the information relied upon Indemnitee for legal or other expenses subsequently incurred by the Indemnified Party to substantiate Indemnitee in connection with the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension defense thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party such Indemnitee shall have the right at its own expense to participate employ counsel to represent such Indemnitee if, in orsuch Indemnitee's reasonable judgment, if it so elects, to assume control a conflict of the defense interest between such Indemnitee and such Indemnifying Party exists in respect of such claimclaim which would make representation of both such parties by one counsel inappropriate, and in such event the Indemnified Party fees and expenses of such separate counsel shall cooperate fully with the be paid by such Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claimassumes such defense, the Indemnified Party Indemnitee shall have the right to participate in the defense thereof and to employ counsel, subject to the proviso of such claim the preceding sentence, at its own expense.
, separate from the counsel employed by the Indemnifying Party, it being understood, subject to the proviso of the preceding sentence, 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 (d) If a claim, whether between other than during the parties or by a third party, requires immediate action, period prior to the parties will make all reasonable efforts to reach a decision with respect thereto time the Indemnitee shall have given notice of the Third Party Claim as expeditiously as possible.
(e) provided above). If the Indemnifying Party does not elect so elects to assume control or otherwise participate in the defense of any third-party claimThird Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof, including by providing or causing to be provided, Records and witnesses as soon as reasonably practicable after receiving any request therefor from or on behalf of the Indemnifying Party. If the Indemnifying Party acknowledges in writing responsibility 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; 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 and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee; provided, however, that the Indemnitee may refuse to agree to any such 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 settlement, compromise or discharge. If an Indemnifying Party elects not to assume the defense of a Third Party Claim, or fails to notify an Indemnitee of its election to do so as provided herein, such Indemnitee may compromise, settle or defend such Third Party Claim. 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 bound by entitled to assume the results obtained defense of the portion relating to money damages. The parties hereto acknowledge that the Media Information Liabilities include the litigation identified on Schedule 1.1(ll) hereto and any additional Actions brought in good faith by connection therewith (the Indemnified "Media Information Litigation") and the New Ceridian Liabilities include the litigation identified on Schedule 1.1(ll)A hereto and any additional Actions brought in connection therewith (the "New Ceridian Litigation"). Notwithstanding anything in this Agreement to the contrary: (a) any claims or demands in connection with the Media Information Litigation or the New Ceridian Litigation shall not be deemed Third Party Claims for purposes of this Agreement; (b) the Corporation, with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 the Media Information Litigation, and 12.3 hereof shall extend New Ceridian with respect to the shareholdersNew Ceridian Litigation, directorsshall have the exclusive right to (i) control the defense of such litigation, officers and Affiliates (ii) settle, compromise or discharge such litigation; and (c) the Corporation with respect to the New Ceridian Litigation, and New Ceridian with respect to the Media Information Litigation, shall have no right to participate in such litigation. In addition, the Corporation with respect to the New Ceridian Litigation, and New Ceridian with respect to the Media Information Litigation, shall: (a) provide litigation services pursuant to the terms of Section 2.9; and (b) to the Indemnified Partyextent reasonably requested by the Corporation or New Ceridian, although for as the purpose case may be, sign such documents as may be reasonably necessary to effect or assist in the pursuit, defense, settlement, compromise or discharge of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Partylitigation.
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “As used herein, an "Indemnified Party”" means a Party seeking indemnification for any Loss (including, but not limited to attorneys fees) shall promptly give notice pursuant to Section 9.2 or 9.3 hereof, as applicable, and the party from whom the indemnification is claimed (the “term "Indemnifying Party”) " means the Party who is obligated to provide indemnification under Section 9.2 or Section 9.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any claim whether between the parties event, or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such any claim, and (ii) the amount of the claim. If a claim relates to an action, suit, demand, assessment, investigation, arbitration or other proceeding filed by or in respect of a third party against the Indemnified (a "Third Party Claim") of which it has knowledge, for which such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunderunder this Article 10. In the case of a Third Party Claim, the Indemnifying Party shall will have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Party Claim at its own expense to expense. In such case, the Indemnified Party may participate in orsuch defense, if it so elects, to assume control but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such claimThird Party Claim, and the Indemnifying Party will reimburse the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for all its reasonable actual out-of-pocket expense costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party as will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the result Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld) or unless a final judgment from which no appeal may be taken by or on behalf of a request the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party to so cooperatewithout the written consent of the Indemnified Party, which consent will not be unreasonably withheld. If the Indemnifying Party elects fails to assume control of defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of any third-party claimsuch Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party shall will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will have the right to participate in the settlement or assume or reassume the defense of such claim at its own expenseThird Party Claim.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Epic Energy Resources, Inc.)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) An Indemnification Claim shall promptly give be made by an Indemnitee by delivery of a written notice to the party from whom Indemnitor Representative (as defined in Section 9.10 below) requesting indemnification and specifying the basis on which indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, sought and (ii) the amount of asserted Losses and, in the claim. If case of a claim relates to an actionThird Party Claim, suit, containing (by attachment or proceeding filed by a third party against the Indemnified Party otherwise) such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of other information as such action, suit, or proceeding Indemnitee shall have been given to the Indemnified Partyconcerning such Third Party Claim.
(b) Following receipt of notice from If the Indemnified Indemnification Claim involves a Third Party of a claim, Claim the Indemnifying Party procedures set forth in Section 8.3 shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon be observed by the Indemnified Party to substantiate the claim. If the Indemnified Party Indemnitee and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it isIndemnitor Representative(s).
(c) With respect to any claim by If the Indemnification Claim involves a third party as to which the Indemnified matter other than a Third Party is entitled to indemnification hereunderClaim, the Indemnifying Party Indemnitor Representative(s) shall have 30 days to object to such Indemnification Claim by delivery of a written notice of such objection to such Indemnitee specifying in reasonable detail the right at its own expense basis for such objection. Failure to participate in or, if it timely so elects, to assume control object shall constitute a final and binding acceptance of the defense Indemnification Claim by the Indemnitor Representative(s) on behalf of such claimall Indemnitors, and the Indemnified Party Indemnification Claim shall cooperate fully be paid in accordance with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expensesubsection (d) hereof.
(d) If a claimUpon determination of the amount of an Indemnification Claim, whether by agreement between the parties Indemnitor Representative(s) and the Indemnitee or by a third party, requires immediate actionan arbitration award or by any other final adjudication, the parties will make all reasonable efforts Indemnitors shall pay the amount of such Indemnification Claim within ten days of the date such amount is determined. In the event that the ACSYS Shareholders are the Indemnitors that are required to reach a decision with respect thereto pay an Indemnification Claim, if the ACSYS Shareholders beneficially own shares of ICCE Common Stock as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claimsuch date, the Indemnifying Party ACSYS Shareholders shall, if so required by ICCE, pay the amount of such Indemnification Claim by surrender to ICCE of such number of shares of ICCE Common Stock as shall be bound equal the quotient obtained by dividing the amount of such Indemnification Claim by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures amount set forth in Section 8.2 of the ICCE Disclosure Memorandum; provided, that if the ACSYS Shareholders do not beneficially own a sufficient number of shares of ICCE Common Stock to pay in full the amount of such Indemnification Claim by surrender of such shares as provided in the preceding clause of this Section 12.4sentence, the ACSYS Shareholders shall surrender to ICCE such number of shares of ICCE Common Stock as such ACSYS Shareholders beneficially own and shall pay any indemnification claims by such parties shall be made by and through remaining balance of the Indemnified PartyIndemnification Amount in cash.
Appears in 1 contract
Sources: Merger Agreement (Acsys Inc)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The If there occurs an event that either party claiming asserts is an indemnifiable event pursuant to Sections 11.01 or 11.02, the party seeking indemnification (the “Indemnified PartyIndemnitee”) shall promptly give provide notice (the “Notice of Claim”) to the other party from whom the or parties obligated to provide indemnification is claimed (the “Indemnifying Party”) ). Providing the Notice of Claim shall be a condition precedent to any claim whether between liability of the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claimIndemnifying Party hereunder, and (ii) the amount failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the claimextent that such failure materially prejudices the Indemnifying Party hereunder. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party In case any such notice action shall be given by the Indemnified Party brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party within ten (10) days of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee and, after written notice from the Indemnifying Party to such Indemnitee of such actionelection so to assume the defense thereof, suitthe Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person with no further liability or obligation on the part of the Indemnitee. The Indemnifying Party agrees to afford the Indemnitee and its counsel, at the Indemnitee’s sole expense, the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee, (ii) injunctive relief affecting the Indemnitee, or proceeding shall have been given to (iii) prospective action or inaction by the Indemnified PartyIndemnitee.
(b) Following Upon receipt of notice from the Indemnified Party a Notice of a claimClaim, the Indemnifying Party shall have thirty calendar days (30or such shorter period as may be appropriate under the circumstances) days in which to make contest its indemnification obligation with respect to such investigation claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available Claim is submitted to the Indemnifying Party and/or its authorized representative(sthe amount of the Loss in respect thereof has not yet been determined, such thirty day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) the information relied upon has been sent or delivered by the Indemnified Party Indemnitee to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to setting forth the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or if bases for the objection of the Indemnifying Party does not respond to such noticethe claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall immediately pay be promptly paid over to the Indemnified Indemnitee. If no such Contest Notice is given within such thirty day period, the obligation of the Indemnifying Party to pay the full Indemnitee the amount of the claim; providedLoss set forth in the Notice of Claim, that the amount held in escrow to secure Sellers’ indemnification or subsequent Notice of Buyer Liability, shall be paid in satisfaction of any claim payable deemed established and accepted by Sellers until that amount is exhausted (if it is)the Indemnifying Party.
(c) With respect If the Indemnifying Party fails to any claim by a third party as assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to which contest such Claim in good faith, the Indemnified Party is entitled Indemnitee, without waiving its right to indemnification hereunderindemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that (i) the Indemnifying Party shall have be permitted to join in the right defense and settlement of such Claim and to employ counsel at its own expense to participate in orexpense, if it so elects, to assume control of (ii) the defense of such claim, and the Indemnified Indemnifying Party shall cooperate fully with the Indemnitee in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not settle such Claim without obtaining the prior written consent of the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party which shall have the right to participate in the defense of such claim at its own expensenot be unreasonably withheld or delayed.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the The Indemnifying Party does shall make any payment required to be made under this Article XI in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not elect to assume control or otherwise participate in paid within fifteen business days of the defense of any third-party claimdate on which such obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend pay to the shareholdersIndemnitee, directorsimmediately upon demand, officers and Affiliates interest at the rate of ten percent per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified PartyIndemnitee.
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Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim8.3.1. If a claim relates to or demand is made against an action, suitIndemnitee, or proceeding filed an Indemnitee shall otherwise learn of an assertion, by any Person who is not a third party against to this Agreement (and who is not an Affiliate of a party to this Agreement) (a "Third Party Claim") as to which a party (the Indemnified Party "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such notice shall be given by the Indemnified Party to Indemnitee will notify the Indemnifying Party within ten (10) days in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after written notice becoming aware of such actionThird Party Claim; provided, suithowever, or proceeding shall have been given that failure to give any such notification will not affect the indemnification provided hereunder except to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, extent the Indemnifying Party shall have thirty demonstrated that it has been actually prejudiced as a result of such failure and to such extent.
8.3.2. If a Third Party Claim is made against an Indemnitee and the Indemnifying Party agrees to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (30) days in which to make such investigation at the expense of the claim Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party shall deem necessary or desirable. For the purposes diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such investigation, the Indemnified claim or (ii) any Indemnifying Party agrees fails to make available provide reasonable assurance to the Indemnifying Party and/or its authorized representative(sIndemnitee (upon request of the Indemnitee) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claimIndemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall Indemnitee will have the right at its own expense to participate employ separate counsel to represent such Indemnitee and in or, if it so elects, to assume control of that event the defense reasonable fees and expenses of such claim, and the Indemnified Party shall cooperate fully with the separate counsel will be paid by such Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of assumes the defense of any third-party claimsuch Third Party Claim, the Indemnified Party shall each Indemnitee will have the right to participate in the defense of such claim thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for the reasonable fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including the agreement by each Indemnifying Party to indemnify the Indemnitee as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof if requested by the Indemnifying Party (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
8.3.3. No Indemnifying Party will consent to any settlement, compromise or discharge (dincluding the consent to entry of any judgment) If of any Third Party Claim without the Indemnitee's prior written consent, which will not be unreasonably withheld; provided, that if the Indemnifying Party agrees to indemnify the Indemnitee for a claim, whether between the parties or by a third party, requires immediate actionThird Party Claim, the parties Indemnitee will make agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend that unconditionally and irrevocably releases the Indemnitee (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all reasonable efforts Liability in connection with such Third Party Claim; provided, however, that the Indemnitee may refuse to reach agree to any such settlement, compromise or discharge that provides for injunctive or other non-monetary relief affecting the Indemnitee. If an Indemnifying Party agrees to indemnify the Indemnitee for a decision Third Party Claim, the Indemnitee will not (unless required by law) admit any liability with respect thereto as expeditiously as possibleto, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(e) 8.3.4. Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability that it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure and to such extent. If the Indemnifying Party does not elect notify the Indemnitee prior to assume control or otherwise participate the expiration of a 45-calendar-day period following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnitee under this Agreement, such claim specified by the Indemnitee in such notice will be conclusively deemed a liability of the Indemnifying Party under this Agreement and the Indemnifying Party shall pay the amount of Damages subject to such claim to the Indemnitee on demand or, in the defense case of any third-party notice in which the amount of the Damages subject to such claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such Damages subject to such claim, as provided above, the Indemnifying Party shall be bound by and the results obtained Indemnitee will proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the Indemnified 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party with respect and the Indemnitee will be free to pursue such claimremedies as may be available under this Agreement or applicable law.
(f) 8.3.5. The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.48.3 (Procedures for Indemnification), shall not govern any indemnification claim or demand made under Section 8.1 (Indemnity by Shareholder) for any inaccuracy in the representations and warranties set forth in Section 5.9 (Tax Matters) or any claims by such parties shall be made by and through the Indemnified Partyunder Section 8.5 (Tax Indemnity).
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (DST Systems Inc)
Procedures for Indemnification. The procedures for indemnification shall If any claim is asserted or any action or proceeding is brought in respect of which indemnity may be as follows:
(a) The party claiming sought, the indemnification (Indemnified Party will promptly notify the “Indemnifying Party in writing of such asserted claim or the institution of such action or proceeding; PROVIDED, HOWEVER, that the Indemnified Party”) shall promptly give notice 's failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability it might otherwise have on account of this indemnity, except to the party from whom extent that the indemnification is claimed (Indemnifying Party has been materially prejudiced by such failure to notify. The Indemnifying Party shall undertake full responsibility for the “Indemnifying Party”) defense of any Third-Party Claim which, if successful, would result in an obligation of indemnity under this Section 7. The Indemnifying Party may contest or settle any such claim whether between on such terms as the parties Indemnifying Party may choose, PROVIDED that the Indemnifying Party will not have the right, without the Indemnified Party's prior written consent, to settle any such claim if such settlement (i) arises from or brought by is part of any criminal action, suit or proceeding, (ii) contains a third party against stipulation to, confession of judgement with respect to, or admission or acknowledgement of, any liability or wrongdoing on the part of the Indemnified Party, specifying (iiii) relates to any Tax matters, (iv) provides for injunctive relief, or other relief or finding other than money damages, which is binding on the factual basis for such claimIndemnified Party, and or (iiv) the amount does not contain an unconditional release of the claimIndemnified Party. If a claim relates to an actionSuch defense will be conducted by reputable attorneys retained by the Indemnifying Party at the Indemnifying Party's cost and expense, suit, or proceeding filed by a third party against but the Indemnified Party will have the right to participate in such notice shall proceedings and to be given separately represented by attorneys of its own choosing. The Indemnified Party will be responsible for the costs of such separate representation unless the Indemnified Party to will have reasonably concluded that the Indemnifying Party within ten (10) days after written notice interests of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to in the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity action conflict in such a manner and amount of such claim, or if the Indemnifying Party does not respond to such noticean extent as to make advisable, consistent with applicable standards of professional responsibility, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount retention of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement separate counsel for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although in which case the Indemnifying Party will pay for the purpose of the procedures set forth in this Section 12.4, any indemnification claims one (but not more than one) separate counsel chosen by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Sources: Merger Agreement (International Remote Imaging Systems Inc /De/)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claimTHIRD PARTY CLAIMS. If a claim relates or demand is made against an IMS Indemnitee or a ST Indemnitee (each, an "Indemnitee") by any person who is not a party to an actionthis Agreement (a "Third Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement, suitsuch Indemnitee shall notify the party which is or may be required pursuant to Section 3.1 or Section 3.2 hereof to make such indemnification (the "Indemnifying Party") in writing, or proceeding filed and in reasonable detail, of the Third Party Claim promptly (and in any event within fifteen (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 third party against result of such failure (except that the Indemnified Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice notice). Thereafter, the Indemnitee shall be given by the Indemnified Party deliver to the Indemnifying Party Party, promptly (and in any event within ten five (105) days business days) after written notice the Indemnitee's receipt thereof, copies of such action, suit, or proceeding shall have been given all notices and documents (including court papers) received by the Indemnitee relating to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Third Party of Claim. If a claimThird Party Claim is made against an Indemnitee, the Indemnifying Party shall have be entitled to participate in the defense thereof and, if 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 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, within thirty 30 days (30) days in which to make such investigation or sooner if the nature of the claim as Third Party Claim so requires), notify the Indemnitee of its intent to do so, and the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available thereafter not be liable to the Indemnifying Party and/or its authorized representative(s) the information relied upon Indemnitee for legal or other expenses subsequently incurred by the Indemnified Party to substantiate Indemnitee in connection with the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension defense thereof) to the validity and amount of ; PROVIDED that such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party Indemnitee shall have the right at its own expense to participate employ counsel to represent such Indemnitee if, in orsuch Indemnitee's reasonable judgment, if it so elects, to assume control a conflict of the defense interest between such Indemnitee and such Indemnifying Party exists in respect of such claimclaim which would make representation of both such parties by one counsel inappropriate, and in such event the Indemnified Party fees and expenses of such separate counsel shall cooperate fully with the be paid by such Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claimassumes such defense, the Indemnified Party Indemnitee shall have the right to participate in the defense thereof and to employ counsel, subject to the proviso of such claim the preceding sentence, 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 (d) If a claim, whether between other than during the parties or by a third party, requires immediate action, period prior to the parties will make all reasonable efforts to reach a decision with respect thereto time the Indemnitee shall have given notice of the Third Party Claim as expeditiously as possible.
(e) provided above). If the Indemnifying Party does not elect so elects to assume control or otherwise participate in the defense of any third-party claimThird Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof, including by providing or causing to be provided Records and witnesses as soon as reasonably practicable after receiving any request therefor from or on behalf of the Indemnifying Party. If the Indemnifying Party acknowledges in writing responsibility 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; 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 and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee; PROVIDED, HOWEVER, that the Indemnitee may refuse to agree to any such 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 settlement, compromise or discharge. If an Indemnifying Party elects not to assume the defense of a Third Party Claim, or fails to notify an Indemnitee of its election to do so as provided herein, such Indemnitee may compromise, settle or defend such Third Party Claim. 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 bound entitled to assume the defense of the portion relating to money damages.
(b) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the results obtained place of such Indemnitee as to any events or circumstances in good faith by the Indemnified Party with respect of which such Indemnitee may have any right or claim relating to such Third Party Claim against any claimant or plaintiff asserting such Third Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
(fc) The indemnification rights remedies provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties Article III shall be made cumulative and shall not preclude assertion by any Indemnitee of any other rights or the seeking of any and through the Indemnified all other remedies against any Indemnifying Party.
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The Whenever a claim shall arise for indemnification under Section 11.1 above, with the exception of claims for litigation expenses in respect of a litigation as to which a notice of claim, as provided below in this Section 11.2, has previously been given, which expenses shall be funded on an ongoing basis, the party claiming the entitled to indemnification (the “Indemnified Party”"INDEMNIFIED PARTY") shall promptly give notice to notify the party from whom the indemnification is claimed sought (the “Indemnifying Party”"INDEMNIFYING PARTY") of such claim and, when known, the facts constituting the basis for such claim; PROVIDED, HOWEVER, that in the event of any claim whether between the parties for indemnification hereunder resulting from or brought in connection with any claim or Legal Proceeding by a third party party, the Indemnified Party shall give such notice thereof to the Indemnifying Party not later than 10 business days prior to the time any response to the asserted claim is required, if possible, and in any event within 5 business days following receipt of notice thereof. Notwithstanding anything in the preceding sentence to the contrary, the failure of any Indemnified Party to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability for indemnification it may have if and to the extent that the Indemnifying Party shall not have been prejudiced by such omission. In the event of any such claim for indemnification resulting from or in connection with a claim or Legal Proceeding by a third party, the Indemnifying Party may, at its sole cost and expense, assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; PROVIDED, HOWEVER, that Seller shall not be entitled to assume the defense of any claim or Legal Proceeding against Buyer for Taxes with respect to a period ending after the Closing Date. If an Indemnifying Party assumes the defense of any such claim or Legal Proceeding, the Indemnifying Party shall be entitled to select counsel and take all steps necessary in the defense thereof; PROVIDED, HOWEVER, that no settlement shall be made without the prior written consent of the Indemnified Party, specifying which consent shall not be unreasonably withheld (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against if the Indemnified Party shall withhold its consent to any monetary settlement proposed by the Indemnifying Party and which the other party to the action has indicated it is prepared to accept, the Indemnified Party shall in no event be deemed for purposes of this Agreement, to have suffered Losses in connection with such claim or proceeding in excess of the proposed amount of such settlement); PROVIDED, FURTHER, that the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice without any right of control thereof. So long as the Indemnifying Party is in good faith defending such claim or Legal Proceeding, the Indemnified Party shall not compromise or settle such claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnifying Party does not assume the defense of any such claim or Legal Proceeding in accordance with the terms hereof, the Indemnified Party may defend (and, in the case of any claim or Legal Proceeding against Buyer for Taxes with respect to a period ending after the Closing Date, shall defend) against such claim or Legal Proceeding in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation (after giving prior written notice of the same to the Indemnifying Party and obtaining the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld) on such terms as the Indemnified Party may deem appropriate, and the Indemnifying Party will promptly indemnify the Indemnified Party in accordance with the provisions of this Section 11.2; PROVIDED, HOWEVER, that if the Indemnified Party does not obtain the prior written consent of the Indemnifying Party to any such settlement, and such written consent is not unreasonably withheld by the Indemnifying Party, the Indemnified Party shall not be entitled to indemnification hereunder from such Indemnifying Party with respect to the claim settled. The Indemnifying Party shall be given liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. Notwithstanding anything in this Section 11.2 to the contrary, if, in any claim or Legal Proceeding with respect to which the Indemnified Party has given the notice required under this Section 11.2, such Indemnified Party shall have reasonably concluded, based upon the opinion of its outside legal counsel, that there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party, then (x) the Indemnified Party within ten may participate in any such proceeding with the counsel of its choice, the expense for which shall be borne by the Indemnifying Party (10but in no event shall the Indemnifying Party be required to pay the fees and expenses of more than one counsel employed by the Indemnified Party with respect to such claim or proceeding) days after written notice and (y) the Indemnifying Party shall not have the right to direct the defense of any such action, suit, or proceeding shall have been given to action on behalf of the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available Notwithstanding anything to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claimcontrary set forth in this Article XI, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With except with respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereundermisrepresentation or breach of warranty set forth in Section 3.12(d), the Indemnifying Party Seller shall have no responsibility or obligation to indemnify Buyer or defend, or hold Buyer harmless against any Losses, claims or Legal Proceedings arising out of Seller's or Buyer's use, reuse, modification, compilation, collection, reproduction, public display or performance, or distribution of showtime data, radio programming data or musical event data. Should Seller choose to litigate or otherwise defend against a claim or Legal Proceeding relating to the right foregoing in which Buyer is not a named party, in accordance with the provisions set forth in this Article XI, Seller shall notify Buyer and Buyer may, at its own sole expense to participate in orand cost, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claimsuch Legal Proceeding with the counsel of its choice. Should Buyer elect not to participate in any such Legal Proceeding, the Indemnifying Party Seller shall be bound by the results obtained have no responsibility to defend such issues and may compromise any such claims on terms favorable to Seller, in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend Seller's sole discretion, without regard to the shareholders, directors, officers and Affiliates outcome of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Partyissues.
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification If a Company Event of Breach or a Wexford Event of Breach (a "Party's Event of Breach") occurs or is alleged and either the Company or the Wexford Indemnitees (a "Party Indemnitee") asserts that the other party has become obligated to it pursuant to Section 7.1 or 7.2, or if any claim is begun, made or instituted as a result of which the other party may become obligated to a Party Indemnitee hereunder, such Party Indemnitee shall be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give prompt notice to the other party. The Party Indemnitee shall permit the other party from whom (at its expense) to assume the indemnification is claimed (the “Indemnifying Party”) defense of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, however, that (a) the counsel for the other party who shall conduct the defense shall be reasonably satisfactory to the Party Indemnitee, (b) the Party Indemnitee may participate in such defense at its expense, and (c) the omission by the Party Indemnitee to give notice as provided herein shall not relieve the other party of its indemnification obligation except to the extent that such omission results in a failure of actual notice to the other party and the other party is materially damaged as a result of such failure to give notice. Except with the prior written consent of the Party Indemnitee, the other party shall not, in the defense of any such claim, consent to entry of any judgment or enter into any settlement that provides for injunctive or other non- monetary relief affecting the Party Indemnitee or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Party Indemnitee of a release from all liability with respect to such claim or litigation. In the event that the amount held Party Indemnitee shall in escrow to secure Sellers’ indemnification good faith determine that the conduct of Buyer shall be paid in satisfaction the defense of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect subject to indemnification hereunder or any proposed settlement of any such claim by a third the other party as might be expected to which affect adversely the Indemnified ability of the Party is entitled Indemnitee to indemnification hereunderconduct its business, or that the Party Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the other party in respect of such claim relating thereto, the Indemnifying Party Indemnitee shall have the right at its own expense all times to participate in or, if it so elects, to take over and assume control over the defense, settlement, negotiations or litigation relating to any such claim at the sole cost of the defense of such claim, other party (including without limitation reasonable attorneys' fees and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party disbursements and other amounts paid as the result of a request by such claim); provided, however, that if the Indemnifying Party Indemnitee does so take over and assume control, the Party Indemnitee shall not settle such claim without the prior written consent of every other party, such consent not to so cooperatebe unreasonably withheld. If In the Indemnifying Party elects to assume control of event that every other party does not accept and continue the defense of any third-party claimmatter as provided above, the Indemnified Party Indemnitee shall have the full right to participate in the defense of defend against any such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party and shall be bound by the results obtained entitled to settle or agree to pay in good faith by the Indemnified Party with respect to full such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates or demand is made against a Party to this Agreement (an action, suit"Indemnitee"), or proceeding filed an Indemnitee shall otherwise learn of an assertion of a claim or demand, by any Person who is not a third party against to this Indemnification Agreement (a "Third Party Claim") as to which a Party (the Indemnified Party "Indemnifying Party") may be obligated to provide indemnification to such notice Indemnitee pursuant to this Indemnification Agreement, such Indemnitee shall be given by the Indemnified Party to notify the Indemnifying Party within ten (10) days in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after written notice becoming aware of such actionThird Party Claim; provided however, suit, or proceeding that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been given to the Indemnified Partyactually and materially prejudiced as a result of such failure.
(b) Following receipt of notice from the Indemnified Party of a claim, the The Indemnifying Party shall will have thirty (30a period of 30 days after delivery of the notice required by Section 1.6(a) days in during which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to defend the claim described on such notice, the Indemnifying Party will be obligated to assume control the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall take all steps necessary in the defense or settlement thereof and shall at all times diligently pursue the resolution thereof. If the Indemnifying Party so elects to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, however, that, if in the Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or demand, or there exists for the Indemnitee a defense that is not available to the Indemnifying Party, such Indemnitee shall have the right to employ separate counsel to represent such Indemnitee and, in that event, the reasonable fees, expenses, disbursements, and related charges of such separate counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any third-party claimThird Party Claim, the Indemnified Party Indemnitee shall have the right to participate in the defense of such claim thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. 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 or if the Indemnifying Party does not expressly elect to assume the defense thereof during such 30-day period. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall keep the Indemnitee informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request written updates and written summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense, negotiation or settlement thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party has assumed the defense of any claim, any compromise or settlement of such claim nevertheless will require the prior written consent of the Indemnitee, which consent will not be unreasonably withheld, unless such compromise or settlement unconditionally and irrevocably releases the Indemnitee completely from all liability in connection with such Third Party Claim.
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Indemnification Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. The Indemnifying Party will have 30 days after the delivery of such notice required by this Section 1.6(d) during which to respond to such notice. If the Indemnifying Party accepts (in writing) full responsibility for the claim described in such notice, such claim specified by the Indemnitee in such notice shall be conclusively deemed a claimliability of the Indemnifying Party under this Indemnification Agreement and the Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, whether between in the parties case of any notice in which the amount of the claim (or by any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has disputed its liability with respect to such claim or does not respond within such 30-day period, or if the Indemnifying Party and the Indemnitee are unable to agree on a third party, requires immediate actionfinal determination of the amount of such claim within such 30-day period, the parties Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will make all reasonable efforts be free to reach a decision resolve such dispute in accordance with respect thereto as expeditiously as possibleArticle II hereof.
(e) If After any final judgment or award shall have been rendered by a court, arbitration panel or administrative agency of competent jurisdiction and the expiration of the time in which to appeal therefrom, or a settlement shall have been consummated, or the Indemnitee and the Indemnifying Party does not elect shall have arrived at a mutually binding agreement with respect to assume control or otherwise participate in a claim for Damages hereunder, the defense Indemnitee shall forward to the Indemnifying Party notice of any third-party claim, sums due and owing by the Indemnifying Party pursuant to this Indemnification Agreement with respect to such matter and the Indemnifying Party shall be bound required to pay all of the sums so due and owing to the Indemnitee by wire transfer of immediately available funds within ten Business Days after the date of such notice to an account designated in writing by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend Indemnitee to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Indemnifying Party.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Amc Entertainment Inc)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The Third Party Claims (other than in respect of Shared Liabilities). ---------------------------------------------------------------- If a claim or demand is made against an Indemnitee by any person who is not a party claiming 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 20 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 (the “Indemnified Party”) shall promptly give notice provided hereunder except to the party from whom extent the indemnification is claimed 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 20 business days) after the Indemnitee's receipt thereof, copies of any claim whether between all notices and documents (including court papers) received by the parties or brought by a third party against Indemnitee relating to the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claimThird Party Claim. If a claim relates to Third Party Claim is made against an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claimIndemnitee, the Indemnifying Party shall have thirty (30) days be entitled to participate in which the defense thereof and, if it so chooses and acknowledges in writing its obligation to make indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided that such investigation of counsel is not reasonably objected to by -------- the claim as Indemnitee. Should the Indemnifying Party shall deem necessary or desirable. For so elect to assume the purposes defense of such investigation, the Indemnified a Third Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such noticeClaim, the Indemnifying Party shall immediately pay not be liable to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement Indemnitee for reasonable actual out-of-pocket expense legal or other expenses subsequently incurred by the Indemnified Party as Indemnitee in connection with the result of a request by the Indemnifying Party to so cooperatedefense thereof. If the Indemnifying Party elects to assume control of the defense of any third-party claimassumes such defense, the Indemnified Party Indemnitee shall have the right to participate in the defense of such claim 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 (d) If a claim, whether between other than during the parties or by a third party, requires immediate action, period prior to the parties will make all reasonable efforts to reach a decision with respect thereto time the Indemnitee shall have given notice of the Third Party Claim as expeditiously as possible.
(e) provided above). If the Indemnifying Party does not elect so elects to assume control or otherwise participate in the defense of any third-party claimThird 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 indemnification of 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; 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 indemnification of 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 and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee; provided, however, that the Indemnitee may refuse to agree to any -------- ------- such 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 have been required to be paid by or on behalf of the Indemnifying Party in connection with such 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 bound by entitled to assume the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates defense of the Indemnified Partyportion relating to money damages. This Section 3.5(a) shall govern all claims under this Article III for indemnification against Third Party Claims except Third Party Claims in respect of Shared Liabilities, although for the purpose of the procedures set forth in this as to which Section 12.4, any indemnification claims by such parties 3.5(b) shall be made by and through the Indemnified Partygovern.
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming Promptly after receipt by a Tejas Indemnified Party or a Company Indemnified Party (such party, the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”"INDEMNIFIED PARTY") of written notice of the assertion or the commencement of any claim whether between the parties or brought proceeding by a third third-party against the Indemnified Partywith respect to any matter referred to in Sections 8.02 (other than excepted matters) or 8.03, specifying (i) the factual basis for such claimas applicable, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such shall give written notice thereof to the party(ies) responsible for indemnification pursuant to Sections 8.02 or 8.03 hereof (the "INDEMNIFYING PARTY"), and thereafter shall be given by keep the Indemnifying Party reasonably informed with respect thereto; provided, however, that failure of the Indemnified Party to give the Indemnifying Party within ten (10) days after written notice as provided herein shall not relieve the Indemnifying Party of such actiontheir obligations hereunder, suit, or proceeding shall have been given except to the Indemnified Partyextent that the Indemnifying Party are prejudiced thereby. A claim for indemnification for any matter not involving a third-party proceeding may be asserted by notice to the Indemnifying Party and shall be paid promptly after such notice.
(b) Following receipt If the facts pertaining to a Loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnifying Party may assume the defense or the prosecution thereof by prompt written notice from to the Indemnified Party Party, including the employment of a claimcounsel or accountants, at its sole cost and expense. In connection therewith, the Indemnifying Party shall have thirty (30) days in which to make acknowledge that such investigation claim is the proper subject of the claim indemnification under Section 8.02 or 8.02, as the Indemnifying Party shall deem necessary or desirableapplicable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in therein, but the defense fees and expense of such claim counsel employed by the Indemnified Party shall be at its own sole cost and expense.
(d) If a claim. Neither the Indemnifying Party nor the Indemnified Party shall be liable for any settlement of any such claim effected without their respective prior written consent, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If which shall not be unreasonably withheld; PROVIDED that if the Indemnifying Party does not elect to assume control or otherwise participate in the defense or prosecution of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
a claim as provided above without thirty (f30) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of days after notice thereof from the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party may settle such claim without the Indemnifying Party's consent. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trails and appeals, as may be reasonably requested in connection therewith.
Appears in 1 contract
Sources: Purchase Agreement (Barr Wayne Jr)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) In the factual basis for such claim, and (ii) the amount event of the claim. If a claim relates to an action, suit, or proceeding filed by being brought against a third party against the Coach Indemnified Party such notice shall be given by the or a Seller Indemnified Party to (as the Indemnifying Party within ten (10) days after written notice of such actioncase may be, suit, or proceeding shall have been given to the an "Indemnified Party.
(b") Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With with respect to any claim by a third party as to which the Indemnified Party is entitled intends to make a claim for indemnification hereunderagainst the Seller or the Coach Parties, the Company or TK Investor No.1 as the case may be (the "Indemnifying Party"), the Indemnified Party shall promptly (but in no event more than 30 days after learning of such claim) give notice to the Indemnifying Party of the claim and permit the Indemnifying Party to assume control of the claim; provided that any failure to provide the foregoing notice on a timely basis shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that it is prejudiced or otherwise damaged thereby.
(ii) The Indemnifying Party shall have the right to undertake, conduct and control, through counsel reasonably acceptable to the Indemnified Party, and at its own expense to participate in orthe Indemnifying Party's sole expense, if it so elects, to assume control of the defense conduct and settlement of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party in connection therewith, provided that the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement without the prior written consent of the Indemnified Party (not to be withheld unreasonably).
(iii) The Indemnifying Party shall permit the Indemnified Party and counsel chosen by the Indemnified Party and reasonably acceptable to the Indemnifying Party to monitor such conduct or settlement and shall provide the Indemnified Party and such counsel with such information regarding such claim, proceeding or suit as either of them may reasonably request, but the fees and expenses of such counsel shall be borne by the Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel, or (ii) the named parties to any such claim, proceeding or suit include the Indemnified Party and the Indemnifying Party, subject and in the reasonable opinion of counsel to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as representation of both Parties by the result same counsel would be inappropriate due to actual or likely conflicts of a request interest between them, in either of which case the reasonable fees and disbursements of counsel for such Indemnified Party shall be reimbursed by the Indemnifying Party to so cooperate. If the Indemnified Party if the Indemnifying Party elects is ultimately held liable, or if the Indemnifying Party is able to assume control of the defense of any third-party claim, recover such fees and disbursements where the Indemnified Party shall have the right to participate in the defense of such claim at its own expense.is not so able; and
(div) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If In no event shall the Indemnifying Party does not elect to assume control or otherwise participate in without the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates prior written consent of the Indemnified Party, although for settle or comprise any claim or consent to the purpose entry of any judgment that does not include as an unconditional term thereof the procedures set forth in this Section 12.4, any indemnification claims giving by such parties shall be made by and through the claimant or the plaintiff to the Indemnified PartyParty a release from all liability in respect of such claim.
Appears in 1 contract
Sources: Stock Purchase Agreement (Coach Inc)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the If a claim for Damages (“Indemnity Claim”), other than Third-Party Claims under Section 8.5(b) below, is to be made by a Person entitled to indemnification under this Article 8 (the “Indemnified Party”), such party shall give written notice briefly describing the claim and the total monetary damages sought (each, a “Notice”) shall promptly give notice to the party from whom the indemnification is claimed Sellers’ Representative or Buyer, as applicable (the each an “Indemnifying Party”) as soon as practicable after such Indemnified Party becomes aware of any fact, condition or event which gives rise to Damages for which indemnification may be sought under this Article 8. Any failure to submit any such notice of claim whether between to the parties Indemnifying Party shall not relieve any Indemnifying Party of any liability hereunder, except to the extent that the Indemnifying Party demonstrates that the Indemnifying Party was actually prejudiced by such failure. The Indemnifying Party shall be deemed to have accepted the Notice and the Indemnifying Party shall be deemed to have agreed to pay the Damages at issue if the Indemnifying Party does not send a notice of disagreement to the Indemnified Party within thirty (30) calendar days after receiving the Notice. If the Indemnifying Party does not send a notice of disagreement to the Indemnified Party within thirty (30) calendar days after receiving the Notice, the Indemnifying Party shall promptly pay to the Indemnified Party the amount sufficient to pay the Damages. For the avoidance of doubt, Buyer shall only be required to send notices to and obtain the approval of the Sellers’ Representative with respect to this Section 8.5; however, Buyer shall serve courtesy notices to Plains Pacific pursuant to Section 9.18 of this Agreement.
(b) If an Indemnity Claim is to be made by an Indemnified Party entitled to indemnification hereunder in respect of, arising out of or brought involving a claim made by a any third party (each, a “Third-Party Claim”) against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party give a Notice to the Indemnifying Party within ten (10) days as soon as practicable after written notice becoming aware of such actionThird-Party Claim. The failure of any Indemnified Party to give timely Notice hereunder shall not affect rights to indemnification hereunder, suitexcept to the extent that the Indemnifying Party demonstrates that the Indemnifying Party was actually prejudiced by such failure. After such Notice, or proceeding if the Indemnifying Party acknowledges in writing to an Indemnified Party that the Indemnifying Party is liable and has indemnity obligations for any Damages resulting from any such Third-Party Claim, then the Indemnifying Party shall have been given be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such Third-Party Claim, (ii) to employ and engage attorneys of its own choice (provided that such attorneys are reasonably acceptable to the Indemnified Party.
(b) Following receipt of notice from to handle and defend the Indemnified Party of a claimsame, unless the Indemnifying Party shall have thirty (30) days in which named parties to make such investigation of the claim as the Indemnifying Party shall deem necessary action or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If proceeding include the Indemnified Party and the Indemnifying Party, and any such Indemnified Party agree at has been advised in writing by counsel that there may be one or prior more legal defenses available to such Indemnified Party that are different from or additional to those available to the expiration Indemnifying Party, in which event such Indemnified Party shall be entitled, at the Indemnifying Parties’ cost, risk and expense, to separate counsel of said thirty its own choosing, and (30) day period (or any agreed upon extension thereofiii) to the validity and amount of compromise or settle such claim, which compromise or if settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld, provided that any such compromise or settlement shall provide for the absolute and unconditional release of the Indemnified Parties from any Liability with respect to such Third-Party Claim. If the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of assumes the defense of such claima Third-Party Claim (to the extent permitted above), and the Indemnified Party shall cooperate fully in all reasonable respects with the Indemnifying PartyParty and its attorneys in the investigation, subject to reimbursement for reasonable actual outtrial and defense of such Third-of-pocket expense incurred by Party Claim and any appeal arising therefrom; provided, however, that the Indemnified Party as may, at its own cost, participate in the result investigation, trial and defense of a request by the Indemnifying Party such lawsuit or action and any appeal arising therefrom. The Parties shall cooperate with each other in any notifications to so cooperateinsurers. If the Indemnifying Party elects fails to assume control of the defense of any thirdsuch claim within fifteen (15) calendar days after receipt of the Notice (whether as a result of its election not to assume such defense), the Indemnified Party against which such claim has been asserted will have the right to undertake, at the Indemnifying Parties’ cost, risk and expense, the defense, compromise or settlement of such Third-party Party Claim on behalf of and for the account and risk of the Indemnifying Parties; provided, however, that such claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnified Party shall have will keep the right to Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement; provided, however, that the Indemnifying Party may, at its own cost, participate in the investigation, trial and defense of such claim at its own expense.
(d) If a claim, whether between the parties lawsuit or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of action and any third-party claim, the appeal arising therefrom. The Indemnifying Party shall be bound by the results obtained liable for any settlement of any Third-Party Claim effected pursuant to and in good faith by accordance with this Section 8.5 and for any final judgment (subject to any right of appeal), and each Indemnifying Party agrees to indemnify and hold harmless the Indemnified Party with respect from and against any Damages by reason of such settlement or judgment subject to such claim.
(f) The indemnification rights the limitations provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified PartyArticle 8.
Appears in 1 contract
Procedures for Indemnification. The procedures Promptly after receipt by an ------------------------------ indemnified party under Section 9.01 or 9.02 of notice of the commencement of any action for which indemnification shall is available under Section 9.01 or 9.02, such indemnified party shall, if a claim in respect thereof is to be as follows:
(a) The made against an indemnifying party claiming the indemnification (the “Indemnified Party”) shall promptly under such section, give notice to the indemnifying party from whom of the indemnification is claimed (commencement thereof, but the “Indemnifying Party”) failure so to notify the indemnifying party shall not relieve it of any claim whether between liability that it may have to an indemnified party except to the extent the indemnifying party demonstrates that the defense of such action is prejudiced thereby. In case any such action shall be brought against an indemnified party and it shall give notice to the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall elect, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such section for any fees of other counsel or any other expenses, in each case subsequently incurred by such indemnified party in connection with the defense thereof, other than reasonable costs of investigation and costs and expenses of legal counsel, if the indemnified party and the indemnifying party are both parties to the action and the indemnified party has been advised by counsel that there may be a conflict of interest in one counsel's representing both it and the indemnifying party. If an indemnifying party assumes the defense of such an action, (a) no compromise or brought settlement thereof may be effected by a third the indemnifying party against without the Indemnified Partyindemnified party's consent (which shall not be unreasonably withheld, specifying delayed or conditioned) unless (i) there is no finding or admission of any violation of law or any violation of the factual basis for such claimrights of any Person and no effect on any other claims that may be made against the indemnified party, and (ii) the amount sole relief provided is monetary damages that are paid in full by the indemnifying party, and (b) the indemnifying party shall have no liability with respect to any compromise or settlement thereof effected without its consent (which shall not be unreasonably withheld, delayed or conditioned). If notice is given by an indemnified party to an indemnifying party of the claim. If a claim relates commencement of any action and it does not, within ten days after the indemnified party's notice is given, give notice to an actionthe indemnified party of its election to assume the defense thereof, suit, or proceeding filed by a third the indemnifying party against the Indemnified Party such notice shall be given bound by any determination made in such action or any compromise or settlement thereof effected by the Indemnified Party indemnified party. Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its affiliates other than as a result of monetary damages, such indemnified party may, by notice to the Indemnifying Party within ten (10) days after written notice of indemnifying party, assume the exclusive right to defend, compromise or settle such action, suit, or proceeding shall have been given to but the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third indemnifying party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does action and not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claimany determination of an action so defended or any compromise or settlement thereof effected without its consent (which shall not be unreasonably withheld, delayed or conditioned).
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Sources: Stock Purchase Agreement (Medical Resources Inc /De/)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) As promptly as practicable after receipt by an Indemnified Party of notice of any Loss in respect of which an Indemnifying Party may be liable under this Article VII, the Indemnified Party shall give notice thereof (the "Indemnification Notice") to the Indemnifying Party. The party claiming Indemnification Notice shall state the reason for the indemnification claim and (if known) the “amount or estimate of the amount that may be due under this Article VII, and shall provide relevant documentary or other evidence regarding such claim and the proposed indemnification amount. The failure of any Indemnified Party”) Party to give such notice shall promptly give not relieve the Indemnifying Party of its indemnification obligations under this Article VII, except to the extent such failure results in a lack of actual notice to the party from whom Indemnifying Party and the Indemnifying Party is materially prejudiced as a result of failure to receive such notice. Within 60 days after receipt of an Indemnification Notice in accordance with this Section 7.03(a), the Indemnifying Party shall deliver to the Indemnified Party a notice of its acceptance of or disagreement with such indemnification is claimed claim.
(b) In the “Indemnifying Party”) case of any claim whether between the parties or brought asserted by a third party against (including any Governmental Authority), the Indemnified Party, specifying Party shall (i) notify the factual basis for Indemnifying Party of such claimclaim within 30 days after receipt of such claim (but at least 15 days prior to the expiration of the period during which the defendant may assert its defense, if such period expires earlier), it being understood that the failure to give such notice shall not relieve the Indemnifying Party of its indemnification obligations under this Article VII, except to the extent such failure results in a lack of actual notice to the Indemnifying Party and the Indemnifying Party is materially prejudiced as a result of failure to receive such notice, and (ii) permit the amount Indemnifying Party, at its option and expense, to take over and assume the defense of the claim. If a any such claim relates by counsel satisfactory to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by and to settle or otherwise dispose of the same; provided that if the Indemnifying Party does so take over and assume the defense, (x) the Indemnified Party to may at its discretion at all times participate, at its own expense, in such defense by counsel of its own choice, and (y) the Indemnifying Party within ten (10) days after written notice shall, at all times and to the maximum extent possible, keep the Indemnified Party informed of the status of such actionclaim and the proceedings related thereto; provided, suitfurther, or proceeding that an Indemnifying Party shall have been given not be entitled to assume the defense of any such third-party claim (and shall be liable for reasonable fees and expenses of counsel to the Indemnified Party.
(bParty for defending such claim) Following receipt of notice from if, in the Indemnified Party Party's reasonable judgment, a conflict of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If interest exists between the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount in respect of such claim. The Indemnifying Party shall not, in defense of any such claim, except with the prior written consent of the Indemnified Party, (A) enter into any settlement or compromise that does not include, as an unconditional term thereof, the giving by the claimant or plaintiff in question to the Indemnified Party and its Affiliates a release of all liabilities in respect of such claims, or if (B) agree to any non-monetary relief that adversely affects the business of the Indemnified Party. If the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of accept the defense of any third-party claimclaim within 30 days of delivery of the notice, the Indemnified Party shall have the right to participate defend against any such claim by counsel of its own choice and shall be entitled to settle or agree to pay in full such claim or demand; provided that if an Indemnified Party does so take over and assume the defense defense, the Indemnified Party shall, at all times and to the maximum extent possible, keep the Indemnifying Party informed of the status of such claim at its own expenseand the proceedings related thereto.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
Appears in 1 contract
Sources: Separation Agreement (Gentek Inc)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The No party claiming hereto will be liable for any Claim for indemnification under this Article VIII unless written notice of a Claim for indemnification is delivered by the party seeking indemnification (the “Indemnified Party”) shall promptly give notice to the party Party from whom the indemnification is claimed sought (the “Indemnifying Party”) prior to the expiration of the applicable survival period, if any, set forth in Section 8.1. If any third party notifies the Indemnified Party with respect to any matter which may give rise to a Claim for indemnification (a “Third Party Claim”) against the Indemnifying Party under this Article VIII, then the Indemnified Party will notify the Indemnifying Party promptly thereof in writing and in any event within 15 days after receiving notice from a third party; provided that no delay on the part of the Indemnified Party in notifying the Indemnifying Party will relieve the Indemnifying Party from any obligation hereunder unless the Indemnifying Party is prejudiced thereby. All notices given pursuant to this Section 8.4 will describe with reasonable specificity the Third Party Claim and the basis of the Indemnified Party’s Claim for indemnification. Once the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Party, the Indemnifying Party will be entitled to participate therein and, to the extent desired, to assume the defense thereof with counsel of its choice. However, the Indemnified Party may continue to participate in (but not control) such defense at its own cost and expense, which costs and expenses shall not be subject to the indemnification provisions in this Article VIII unless the Indemnifying Party does not actually assume the defense thereof following notice of such election. If the Indemnifying Party does not assume the defense of such Third Party Claim, the Indemnified Party will have the right to undertake the defense of such Third Party Claim, by counsel or other representatives of its own choosing (subject to the limitations on the Indemnifying Party’s obligations to indemnify otherwise set forth in this Article VIII and in the definition of Losses in Section 1.1, and to the right of the Indemnifying Party to assume the defense of or opposition to such Third Party Claim at any time prior to settlement, compromise or final determination thereof).
(b) Neither the Indemnified Party nor the Indemnifying Party will consent to the entry of any claim whether between judgment or enter into any settlement or compromise of any Third Party Claim that might give rise to liability of another Party, in each case without such Party’s consent, which will not be unreasonably withheld or delayed; provided, however, the parties Indemnifying Party may settle or brought by compromise a third party against Third Party Claim, without the consent of the Indemnified Party, specifying if (i) the factual basis such settlement or compromise is made only for such claimmonetary consideration, and (ii) the amount of the claim. If a claim relates to an action, suit, or proceeding filed all required payments are paid entirely by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of settle any third-party claimsuch Third Party Claim, and the Indemnified Party shall have refuses to consent to such compromise or settlement, then the right to participate in the defense liability of such claim at its own expense.
(d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, Indemnified Party will be limited to the amount offered by the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.compromise or settlement
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(ai) The party claiming If any Acquiror Indemnitee or Seller Indemnitee (an "INDEMNIFIED PARTY") receives notice of the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) assertion of any claim whether between claim, the parties commencement of any suit, action or brought proceeding, or the imposition of any penalty or assessment by a third party against the Indemnified Party, specifying in respect of which indemnity may be sought hereunder (i) the factual basis for such claima "THIRD PARTY CLAIM"), and the indemnified party intends to seek indemnity hereunder, the indemnified party will promptly provide the other party (iian "INDEMNIFYING PARTY") the amount with written notice of the claim. If a claim relates to an actionThird Party Claim, suit, or proceeding filed by a third party against the Indemnified Party but in any event such notice shall be given provided not later than 30 calendar days after receipt of such notice of Third Party Claim. The failure by an indemnified party to so notify an indemnifying party of a Third Party Claim will not relieve the Indemnified Party indemnifying party of any indemnification responsibility under this Article X, except to the Indemnifying extent, if any, that such failure materially prejudices the ability of the indemnifying party to defend such Third Party within ten (10Claim. For clarification, it is agreed that Seller will not be an indemnifying party for claims pursuant to Section 10.3(a) days after written notice or 10.3(b) for amounts below the $25 million amount referred to in the last proviso of such action, suit, or proceeding shall have been given to the Indemnified PartySection 10.3.
(bii) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third The indemnifying party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall will have the right to participate in control the defense defense, compromise or settlement of such claim at the Third Party Claim with its own expense.
counsel (d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or otherwise participate in the defense of any third-party claim, the Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend reasonably satisfactory to the shareholdersindemnified party); provided, directorshowever, officers and Affiliates that the indemnifying party shall not settle any such Third Party Claim without the consent of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.indemnified party (which
Appears in 1 contract
Sources: Stock Purchase Agreement (Martin Marietta Materials Inc)
Procedures for Indemnification. The procedures for Promptly after receipt by a party entitled to indemnification shall be as follows:
under Sections 9.1 (aIndemnification by Seller) The party claiming the indemnification or 9.2 (Indemnification by Purchaser) or any other provision of this Agreement (the “Indemnified PartyIndemnitee”) shall promptly of written notice of the assertion or the commencement of any Proceeding with respect to any matter referred to in Sections 9.1 (Indemnification by Seller) or 9.2 (Indemnification by Purchaser) or in any other applicable provision of this Agreement, the Indemnitee will give written notice describing such claim or Proceeding in reasonable detail in light of the circumstances then known to the Indemnitee to the party from whom the indemnification is claimed obligated to indemnify Indemnitee (the “Indemnifying PartyIndemnitor”) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim), and (ii) thereafter will keep the amount of the claim. If a claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be given by the Indemnified Party to the Indemnifying Party within ten (10) days after written notice of such action, suit, or proceeding shall have been given to the Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have thirty (30) days in which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claimIndemnitor reasonably informed with respect thereto; provided, however, that failure of the Indemnitee to keep the Indemnitor reasonably informed as provided herein will not relieve the Indemnitor of its obligations hereunder except to the extent that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount Indemnitor is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperateprejudiced thereby. If the Indemnifying Party elects to assume control of the defense of any third-party claim, the Indemnified Party shall have the right to participate in the defense of such claim at its own expense.
(d) If a claim, whether between the parties or Proceeding will be commenced against any Indemnitee by a third party, requires immediate actionthe Indemnitor will be entitled to participate in such Proceeding and assume the defense thereof with counsel reasonably satisfactory to the Indemnitee, at the parties Indemnitor’s sole expense; provided, however, that the Indemnitor will make be responsible for all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If resulting Damages; provided, further, however, that the Indemnifying Party does Indemnitor will not elect have the right to assume control or otherwise participate in the defense of any third-party claimProceeding if (i) the Indemnitee will have one or more legal or equitable defenses available to it which are different from or in addition to those available to the Indemnitor, and, in the reasonable opinion of the Indemnitee, counsel for the Indemnitor could not adequately represent the interests of the Indemnitee because such interests could be in conflict with those of the Indemnitor; (ii) such litigation is reasonably likely to have a material adverse effect on any other matter beyond the scope or limits of the indemnification obligation of the Indemnitor; (iii) the Indemnitor will not have assumed the defense of the litigation in a timely fashion (but in any event within [***] of notice of such Proceeding); or (iv) such Proceeding involves a Governmental Authority or any allegation of any criminal violation. If the Indemnitor will assume the defense of any Proceeding, the Indemnifying Party shall Indemnitee will be bound entitled to participate in any Proceeding at its expense, and the Indemnitor will not settle such Proceeding unless the settlement will include as an unconditional term thereof the giving by the results obtained in good faith by claimant or the Indemnified Party plaintiff of a full and unconditional release of the Indemnitee from all Liability with respect to the matters that are subject to such claimProceeding, or otherwise will have been approved by the Indemnitee, such approval not to be unreasonably withheld or delayed.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such parties shall be made by and through the Indemnified Party.
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Sources: Asset Purchase Agreement (Forma Therapeutics Holdings, Inc.,)