Procedures for Indemnification. An indemnified party hereunder shall notify the indemnifying party, in writing, of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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.
Appears in 4 contracts
Sources: Common Stock and Warrant Purchase Agreement (Corautus Genetics Inc), Common Stock and Warrant Purchase Agreement (Corautus Genetics Inc), Common Stock and Warrant Purchase Agreement (Corautus Genetics Inc)
Procedures for Indemnification. An indemnified (a) If a party entitled to indemnification under this Section 11 (an “Indemnified Party”) asserts that it has suffered or incurred a Loss for which it is entitled to indemnification or that a party obligated to indemnify it has become obligated to such Indemnified Party, or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnified Party may become entitled to indemnification or a party obligated to indemnify it has become obligated to an Indemnified Party, such Indemnified Party shall give prompt written notice to (i) in the case of a claim for indemnification pursuant to Section 11.2(a), the applicable Seller against whom such claim is asserted, (ii) in the case of a claim for indemnification pursuant to Section 11.2(b), the Seller Representative, and (iii) in the case of a claim for indemnification pursuant to Section 11.3, the Buyer (each such person, an “Indemnifying Party”). No delay in delivering such written notice to the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder shall notify or prevent the indemnifying party, Indemnifying Party from recovering in writing, respect of any claim for indemnificationindemnification pursuant to and in accordance with this Section 11 unless, specifying and then solely to the extent that, the Indemnifying Party is actually and materially prejudiced thereby. Such notice by the Indemnified Party will describe the claim giving rise to an obligation of indemnification in reasonable detail and will indicate the nature estimated amount, if reasonably practicable, of the Claims and Losses and, if knownLoss that has been or may be sustained by the Indemnified Party. Thereafter, the amount or an estimate Indemnified Party will deliver to the Indemnifying Party, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to such claim. Within 30 days after delivery of a notice pursuant to this Section 11.6 (the “Response Period”), the Indemnifying Party shall deliver to the Indemnified Party a written response to such notice. If, during the Response Period, the Indemnifying Party delivers a written notice disputing the Indemnified Party’s entitlement to indemnification of the amount Losses described in such notice, the parties shall use their commercially reasonable efforts to settle such disputed matters within 30 days following the expiration of the Claims Response Period. The parties hereto acknowledge and Lossesagree that the Federal Rules of Evidence Rule 408 shall apply to the parties hereto during any such negotiations and any subsequent dispute arising therefrom. In If the event of a claim parties are unable to reach agreement within such 30-day period, the dispute may be resolved by any third partylegally available means consistent with the provisions of Section 15.2.
(b) This Section 11.5(b) shall apply to any suit, action, investigation, claim or if there is any claim against proceeding asserted by a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be against an Indemnified Party (a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense“Third-Party Claim”). 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties hereto shall cooperate and provide reasonable assistance in the defense or prosecution thereof thereof. The Indemnified Party may not settle or compromise any Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed). No Indemnified Party nor any of its Affiliates will admit any liability with respect to, or settle, compromise or discharge any Third-Party Claim without the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld or delayed. The Indemnified Party and shall furnish the Indemnifying Party will cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available records relating to such recordsThird-Party Claim and furnishing, information and testimonywithout expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, and attend such conferences, discovery proceedings, hearings, trials and appeals, management employees of the non-defending party as may be reasonably requested in connection therewithnecessary for the preparation of the defense of such Third-Party Claim.
(c) To the extent of any conflict between Section 10.2(b) and this Section 11.5, Section 10.2(b) shall govern.
Appears in 3 contracts
Sources: Sale and Purchase Agreement (P10, Inc.), Sale and Purchase Agreement (P10, Inc.), Sale and Purchase Agreement (P10, Inc.)
Procedures for Indemnification. An indemnified party hereunder shall notify the indemnifying party, in writing, of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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.
Appears in 3 contracts
Sources: Common Stock Purchase Agreement (Corautus Genetics Inc), Common Stock and Warrant Purchase Agreement (Corautus Genetics Inc), Common Stock and Warrant Purchase Agreement (Corautus Genetics Inc)
Procedures for Indemnification. An indemnified party hereunder shall notify the indemnifying party, in writing, of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount or 31.5.1 If an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution indemnitee becomes aware of a third-party claim as provided above within thirty Claim that (30if successful) Days after notice thereof from the will result in a Loss to be indemnified partyunder this Section, the indemnitee will promptly notify the indemnitor in writing (with a copy of the notice to the indemnitor's legal counsel). Failure or delay in giving such notice will not affect the right to be indemnified except to the extent that it prejudices the defense of the Claim. If the indemnitor acknowledges that the Claim (if successful) will result in Loss within its obligation to indemnify under this Section, it may assume the defense within fifteen (15) days after receiving the notice of the Claim. In the meantime, the indemnitee may take any action that it deems appropriate to protect its interests or those of the indemnitor, provided it is not prejudicial to the indemnitor.
31.5.2 If the indemnitor acknowledges its obligation to indemnify and assumes the defense, it will have both the duty to defend and the right to control the defense. The indemnitor will conduct the defense in a prudent manner and will keep the indemnitee reasonably informed as to the status of the defense. The indemnitee will cooperate with the defense and may retain separate counsel at its own expense to participate in, but not control, the defense. Neither party may settle such claim a Claim without the indemnifying party’s consentconsent of the other, and that consent may not be unreasonably withheld or delayed.
31.5.3 If the indemnitor does not timely assume the defense, the indemnitee will have the right (but no duty) to defend or settle the Claim at the risk of the indemnitor. The indemnifying party shall not agree to a settlement indemnitor will reimburse the indemnitee for its expenses (including reasonable attorney's fees) of any Claims and Losses which provides for any relief other than defending or settling the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithClaim.
Appears in 2 contracts
Sources: Master Supply Agreement, Master Supply Agreement (Heska Corp)
Procedures for Indemnification. An indemnified party hereunder (a) The Indemnitee shall notify give written notice (the indemnifying party, in writing, “Indemnification Notice”) of any Damages or the commencement of any Proceeding by a third party with respect to any matter referred to in Section 10.2 thereof to the Indemnitor, which Indemnification Notice shall include a description of the Damages or Proceeding, the amount thereof (if known and quantifiable) and the basis for the Damages or Proceeding; provided, that failure of the Indemnitee to give the Indemnification Notice as provided herein shall not relieve the Indemnitor of its obligations hereunder.
(b) If the Indemnitor does not object to the Damages within twenty (20) Business Days of Indemnitee’s delivery of the Indemnification Notice to Indemnitor, after Indemnitee’s delivery of a written notice of cancellation (the “Cancellation Notice”) to the Indemnitor, Indemnitor shall pay the aggregate amount of Damages set forth in the Indemnification Notice within five (5) Business Days of Indemnitee’s delivery of the Cancellation Notice. Indemnitor may object to the claim for indemnificationon the Indemnification Notice by delivery to Indemnitee of such objection in writing within twenty (20) Business Days of Indemnitee’s delivery of the Indemnification Notice to Indemnitor. In case Indemnitor shall so object in writing to any claim or claims by Indemnitee made in any Indemnification Notice, specifying Indemnitee shall have thirty (30) days after receipt of such objection to respond in reasonable detail a written statement that describes the nature of the Claims and Losses and, if known, the amount or an estimate such objection and/or Indemnitor’s assessment of the amount of the Claims Damages. If after such thirty (30) day period there remains a dispute as to any claims, Indemnitee and Losses. In Indemnitor shall attempt in good faith for thirty (30) days to agree upon the event of a claim by any third party, or if there is any claim against a third party available by virtue rights of the circumstances respective parties with respect to each of such claims. If no agreement can be reached after good faith negotiation between the Claims parties pursuant to this Section, then the parties shall subject such dispute to the dispute resolution procedures set forth in Section 11.13.
(c) Indemnitor shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, and Losses, at its option (subject to the indemnifying party may limitations set forth below) shall be entitled to assume the defense or the prosecution thereof by prompt written notice appointing a nationally recognized and reputable counsel reasonably acceptable to indemnified party including the employment of Indemnitee to be the lead counsel or accountants, at its cost and expensein connection with such defense; provided, however, if provided that:
(i) the defendants Indemnitee shall be entitled to participate in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense claim and otherwise participate in such action at the indemnifying party’s expense. The indemnified party shall have the right to employ counsel separate from counsel employed by the indemnifying party in any of its choice for such action and to participate therein, but purpose; provided that the fees and expenses of such separate counsel employed shall be borne by the indemnified party Indemnitee (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnitor effectively assumes control of such defense which, notwithstanding the foregoing, shall be at its expense. The indemnifying party borne by the Indemnitor, and except that the Indemnitor shall pay all of the fees and expenses of such separate counsel if the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee);
(ii) the Indemnitor shall not be liable 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: (A) the claim for indemnification relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation; (B) the Indemnitee reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would be detrimental to or injure the Indemnitee’s reputation or future business prospects; (C) the claim seeks an injunction or equitable relief against the Indemnitee; (D) the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee; (E) the claim involves environmental matters in which case the Indemnitee shall have sole control and management authority over the resolution of such claim (including hiring legal counsel and environmental consultants, conducting environmental investigations and cleanups, negotiating with governmental agencies and third parties and defending or settling claims and actions); provided that the Indemnitee shall keep the Indemnitor apprised of any major developments relating to any environmental claim; (F) upon petition by the Indemnitee, the appropriate court or arbitral rules that the Indemnitor failed or is failing to vigorously prosecute or defend such claim; or (G) the Indemnitee reasonably believes that the Damages relating to the claim could exceed the maximum amount that such Indemnitee could then be entitled to recover under the applicable provisions of Article 10; and
(iii) if the Indemnitor shall control the defense of any such claim, the Indemnitor shall obtain the prior written consent of the Indemnitee before entering into any settlement of any a claim or ceasing to defend such Claims and Losses effected without its prior written consentclaim if, which shall not pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be unreasonably withheld; provided that imposed against the Indemnitee or if the indemnifying party such settlement does not assume expressly and unconditionally release the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof Indemnitee from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree all Liabilities with respect to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties without prejudice. Notwithstanding anything to the contrary contained in this Agreement or otherwise, neither Seller nor Buyer shall cooperate in the defense be responsible for any special, incidental, punitive 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 therewithconsequential Damages (including Damages for lost profits).
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Cardium Therapeutics, Inc.)
Procedures for Indemnification. An indemnified The Buyer Indemnitees and Seller Indemnitees shall be referred to in this Section 7.4 as the “Indemnitees”. Indemnitees shall give the party hereunder shall notify against whom indemnification is sought pursuant to this Section 7 (the indemnifying party, in writing, “Indemnifying Person”) prompt notice of any written claim, demand, assessment, action, suit or Proceeding to which the indemnity set forth in this Section 7 applies. If the document evidencing such claim for indemnificationor demand is a court pleading, specifying in reasonable detail the nature Indemnitee shall give such notice, including a copy of such pleading, within seven (7) days of receipt of such pleading, otherwise, the Indemnitee shall give such notice within thirty (30) days of the Claims and Losses and, if known, date it receives written notice of such claim. Failure to give timely notice of a matter which may give rise to an indemnification claim shall not affect the amount or an estimate rights of the amount of Indemnitee to collect such Loss from the Claims and LossesIndemnifying Person so long as such failure to so notify does not materially adversely affect the Indemnifying Person’s ability to defend such Loss against a third party. In If the event Indemnitee’s request for indemnification arises from the claim of a claim by any third party, or if there is any claim against a third party available by virtue the Indemnifying Person may, at its option, assume control of the circumstances defense of any such claim, or any litigation resulting from such claim so long as (a) the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt Indemnifying Person gives written notice to indemnified the Indemnitee within twenty (20) days after the Indemnitee has given notice of the third party claim that the Indemnifying Person will indemnify the Indemnitee from and against the entirety of any and all Losses the Indemnitee may suffer resulting from, arising out of, relating to, in the nature of, or caused by the third party claim, (b) the Indemnifying Person provides the Indemnitee with evidence reasonably acceptable to the Indemnitee that the Indemnifying Person will have adequate financial resources to defend against the third party claim and fulfill its indemnification obligations hereunder, (c) the third party claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnitee, (d) the Indemnitee has not been advised in writing by counsel that an actual or potential conflict exists between the Indemnitee and the Indemnifying Person in connection with the defense of the third party claim, (e) settlement of, an adverse judgment with respect to or the Indemnifying Person’s conduct of the defense of the third party claim is not, in the good faith judgment of the Indemnitee, likely to be adverse to the Indemnitee’s reputation or continuing business interests (including its relationships with current or potential customers, suppliers or other parties material to the employment conduct of its business) and (f) the Indemnifying Person conducts the defense of the third party claim actively and diligently. The Indemnitee may retain separate co-counsel or accountants, at its sole cost and expenseexpense and participate in the defense of the third party claim; provided, however, if that the defendants Indemnifying Person will pay the reasonable fees and expenses of separate co-counsel retained by the Indemnitee that are incurred prior to Indemnifying Person’s assumption of control of the defense of the third party claim. Failure by the Indemnifying Person to notify the Indemnitee of its election to defend a complaint by a third party within twenty (20) days shall be a waiver by the Indemnifying Person of its right to respond to such complaint and within thirty (30) days after notice thereof shall be a waiver by the Indemnifying Person of its right to assume control of the defense of such claim or action. If the Indemnifying Person assumes control of the defense of such claim or litigation resulting therefrom, the Indemnifying Person shall take all reasonable steps necessary in the defense or settlement of such claim or litigation resulting therefrom. The Indemnifying Person shall not, in the defense of such claim or litigation, consent to entry of any judgment against any Indemnitee or enter into any settlement, involving any Indemnitee, except in either case with written consent of the Indemnitee, which consent shall not be unreasonably withheld or delayed. The Indemnitee shall furnish the Indemnifying Person in reasonable detail all information the Indemnitee may have with respect to any such action include both third-party claim and shall make available to the indemnifying party Indemnifying Person and its representatives all records and other similar materials which are reasonably required in the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions defense of such parties third-party claim and shall otherwise cooperate with and assist the Indemnifying Person in conducting the defense of such third-party claim. If the Indemnifying Person does not assume control of the defense of any such actionthird-party claim or litigation resulting therefrom, the indemnified party shall have the right to select separate legal counsel to assume Indemnitee may defend against such defense and otherwise participate claim or litigation in such action at manner as it may reasonably deem appropriate, and the indemnifying party’s expenseIndemnifying Person shall indemnify the Indemnitee from any Loss indemnifiable under Section 7 incurred in connection therewith. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party Indemnifying Person shall not be liable obligated to the Indemnitee for any settlement or consent to a stay of judgment made by any Indemnitee if such Claims and Losses effected settlement or consent is entered into without its the prior written consent, consent of the Indemnifying Person which consent shall not be unreasonably withheld; provided withheld or delayed. If the Indemnitee should have a claim against the Indemnifying Person that if the indemnifying party does not assume involve a third party claim, the defense Indemnitee shall deliver a notice of such claim to the Indemnifying Person. If the Indemnifying Person notifies the Indemnitee that it does not dispute the claim described in such notice or prosecution of a third-party claim as provided above fails to notify the Indemnitee within thirty (30) Days days after delivery of such notice thereof from by the indemnified partyIndemnitee whether the Indemnifying Person disputes the claim described in such notice, the indemnified party may settle such claim without Loss in the indemnifying partyamount specified in the Indemnitee’s consent. The indemnifying party shall not agree to notice will be conclusively deemed a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition liability of the indemnified party without Indemnifying Person and the indemnified party’s prior written consentIndemnifying Person shall pay the amount of such Loss to the Indemnitee on demand. Whether or not If the indemnifying party chooses Indemnifying Person has timely disputed its liability with respect to so defend or prosecute such claim, both parties shall cooperate a senior executive of each of the Indemnifying Person and the Indemnitee with full negotiating authority will proceed in the defense or prosecution thereof and shall furnish good faith to negotiate a resolution of such records, information and testimonydispute, and attend if not resolved through the negotiations of such conferencesexecutives within sixty (60) days after the delivery of the Indemnitee’s notice of such claim, discovery proceedings, hearings, trials such dispute shall be resolved fully and appeals, as may be reasonably requested in connection therewithfinally by a court of competent jurisdiction.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Coolbrands International Inc), Asset Purchase Agreement (Coolbrands International Inc)
Procedures for Indemnification. An indemnified party hereunder shall notify the indemnifying party, in writing, of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. (a) In the event of a claim by any third party, or if there is any claim against a third party available by virtue of dispute between the circumstances of the Claims and Lossesparties, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded refer all indemnification matters with regard to Sections 17.1(b) and 17.2(b) hereof for dispute resolution pursuant to Section 20.9 below.
(b) With respect to any third-party claims, either party shall give the other party prompt notice of any third-party claim, that there may be a conflict between give rise to any indemnification obligation under this Article 17, together with the positions estimated amount of such parties claim. Failure to give such notice shall not affect the indemnification obligations hereunder in conducting the defense absence of any such action, the indemnified actual and material prejudice. The indemnifying party shall have the right to select separate legal assume the defense (at its own expense) of any such claim through counsel of its own choosing by so notifying the party seeking indemnification within thirty (30) calendar days of the first receipt of such notice; provided, however, that any such counsel shall be reasonably satisfactory to assume such defense the party seeking indemnification. If, under applicable standards of professional conduct, a conflict with respect to any significant issue between any indemnitee and otherwise participate in such action at the indemnifying party’s expenseparty exists in respect of such third-party claim, the indemnifying party shall also pay the reasonable fees and expense of such additional counsel as may be required to be retained in order to eliminate such conflict. The indemnified If the indemnifying party assumes such defense, the party seeking indemnification shall have the right to participate in the defense thereof and to employ counsel counsel, at its own expense, separate from the counsel employed by the indemnifying party in any such action and to participate therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expenseparty. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not If the indemnifying party chooses to so defend or prosecute such a third-party claim, both parties the other party shall cooperate in the defense or prosecution thereof and thereof, which cooperation shall furnish such recordsinclude, information and testimonyto the extent reasonably requested, the retention, and attend the provision to the indemnifying party, of records and information reasonably relevant to such conferencesthird-party claim. The indemnifying party shall not, discovery proceedingswithout the prior written consent of the indemnified party, hearingsagree to the settlement, trials and appealscompromise or discharge of such third-party claim unless, as may be reasonably requested by its terms, such settlement, compromise or discharge actually discharges the indemnified party from the full amount of liability in connection therewithwith such third-party claim. In addition, the indemnifying party shall not consent to, and the indemnified party in no event be required to agree to, the entry of any judgment or enter into any settlement that (i) provides for injunctive or other non-monetary relief affecting the indemnified party or (ii) does not include as an unconditional term thereof the giving of a release for all liability with respect to such claim by each claimant or plaintiff to each indemnified party that is the subject of such third-party claim. Notwithstanding the foregoing, the provisions of Section 6.7(b) hereof and not the provisions of this Section 17.4 shall apply to any Assessment by any governmental authority to which said Section 6.7(b) applies.
Appears in 2 contracts
Sources: Master Supply Agreement (Xerox Corp), Master Supply Agreement (Xerox Corp)
Procedures for Indemnification. An indemnified (a) If a claim is made by any Taxing authority, which, if successful, might result in an indemnity payment by a party hereunder ("Tax Indemnitor") to another ("Tax Indemnitee") pursuant to Section 11.02, Tax Indemnitee shall promptly notify the indemnifying partyTax Indemnitor in writing of such claim (a "Tax Claim"). If notice of a Tax Claim is not given to Tax Indemnitor within a sufficient period of time to allow Tax Indemnitor to effectively contest such Tax Claim, in writing, of any claim for indemnification, specifying or in reasonable detail to apprise Tax Indemnitor of the nature of the Claims Tax Claim, in each case taking into account the facts and Losses circumstances with respect to such Tax Claim, Tax Indemnitor shall not be liable to Tax Indemnitee to the extent that Tax Indemnitor's ability to effectively contest such Tax Claim is actually prejudiced as a result thereof.
(b) With respect to any Tax Claim, Tax Indemnitor shall control all proceedings taken in connection with such Tax Claim (including, without limitation, selection of counsel) and, if knownwithout limiting the foregoing, may in its sole discretion pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any Taxing authority with respect thereto and may, in its sole discretion, either pay the amount Tax claimed and ▇▇▇ for a refund where Applicable Law permits such refund suits or an estimate of contest the amount of the Claims and Losses. In the event of a claim by Tax Claim in any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expensepermissible manner; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party Tax Indemnitor shall not be liable for any settlement of any such Claims settle or compromise a Tax Claim without giving thirty (30) days notice to Tax Indemnitee and Losses effected without its prior written Tax Indemnitee's consent, which shall not be unreasonably withheld; provided that , if the indemnifying party does not assume the defense such settlement or prosecution compromise would result in a material Tax Liability of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified partyTax Indemnitee or members of its affiliated group for any Taxable period. If Tax Indemnitee reasonably withholds its consent, the indemnified party may settle indemnification obligation of Tax Indemnitor to Tax Indemnitee under this Article XI shall be limited to the amount of such claim without settlement or compromise, and Tax Indemnitee shall have the indemnifying party’s consent. The indemnifying party shall not agree right to a settlement take over the control of any Claims proceedings with respect to such Tax Claim at its own expense.
(c) Buyer and Losses Seller shall cooperate with each other in contesting any Tax Claim, which provides cooperation shall include, without limitation, granting powers of attorney to the party who is entitled to control the proceedings, retaining and providing records and information that are reasonably relevant to such Tax Claim, and making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder or to testify at proceedings relating to such Tax Claim.
(d) Any payment under this Article XI shall be treated for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition tax purposes as an adjustment of the indemnified party without Purchase Price to the indemnified party’s prior written consent. Whether or not extent such characterization is proper and permissible under relevant Tax authorities, including court decisions, statutes, regulations and administrative promulgations.
(e) The indemnification obligations of the indemnifying party chooses parties set forth in this Article XI shall survive until the expiration of the applicable statute of limitations relating to so defend or prosecute such claim, both parties 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 therewithTaxes that are the subject of the indemnification obligation.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Metromedia International Group Inc), Stock Purchase Agreement (Metro-Goldwyn-Mayer Inc)
Procedures for Indemnification. An indemnified party hereunder shall notify The Principal Shareholder and the indemnifying partyOther Principal Shareholder will jointly have the right to control, in writingat their own cost, the defense of any claim for indemnificationactions, specifying suits or proceedings that may result in reasonable detail indemnity pursuant to Section 5 (an “Excess Price Proceeding”) with counsel reasonably satisfactory to the nature of Company. If the Claims Principal Shareholder and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may Other Principal Shareholder do not jointly elect to assume the defense or control of an Excess Price Proceeding within three (3) days after the prosecution thereof by prompt written notice commencement of any such Excess Price Proceeding, then the Company will assume and have the right to indemnified party including the employment of counsel or accountantscontrol, at its cost and expense; providedown cost, howeverthe defense of any Excess Price Proceeding. If the Company controls the defense of any Excess Price Proceeding, if the defendants in any such action include both Company shall (a) obtain the indemnifying party and written consent of the indemnified party and such parties shall have reasonable concluded that there may be a conflict between Principal Shareholder to the positions selection of such parties in conducting legal counsel to the Company for the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, claims (which consent shall not be unreasonably withheld; provided that if , delayed or conditioned), (b) reasonably consult, and cause the indemnifying party does Company’s legal counsel to reasonably consult, with the Principal Shareholder and its legal counsel regarding such defense upon the Principal Shareholder’s reasonable request, (c) keep the Principal Shareholder and its legal counsel reasonably informed of any material developments in such action, suit or proceeding, and (d) prior to compromising or settling any Excess Price Proceeding, obtain the prior written consent of the Principal Shareholder (which consent will not assume the defense be unreasonably withheld, delayed or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consentconditioned). The indemnifying party shall not agree Company will have the right, at its own expense, to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses engage legal counsel to so defend or prosecute such claim, both parties shall cooperate participate in the defense of such action, suit or prosecution thereof proceeding. If the Principal Shareholder and the Other Principal Shareholder jointly control the defense of any Excess Price Proceeding, the Principal Shareholder and the Other Principal Shareholder shall furnish (a) obtain the written consent of the Company to the selection of legal counsel to the Principal Shareholder and the Other Principal Shareholder for the defense of any such recordsclaims (which consent shall not be unreasonably withheld, information and testimonydelayed or conditioned), (b) reasonably consult, and attend cause their legal counsel to reasonably consult, with the Company and its legal counsel regarding such conferencesdefense upon the Company’s reasonable request, discovery proceedings(c) keep the Company and its legal counsel reasonably informed of any material developments in such action, hearingssuit or proceeding, trials and appeals(d) prior to compromising or settling any Excess Price Proceeding, obtain the prior written consent of the Company (which consent will not be unreasonably withheld, delayed or conditioned). The Company will give the Principal Shareholder written notice of all claims for indemnification under this Agreement and the amount of such claims promptly upon their determination, provided that the failure to provide any such notice shall not prejudice the rights of the Company to indemnification hereunder. All such claims shall be satisfied by the Principal Shareholder by payment of such obligation directly to the current or former shareholder of the Company entitled to such indemnifiable amount within five business days of receipt of such notice by wire transfer of immediately available funds to an account or accounts specified by such current or former shareholder, or at such other time and in such other manner as may otherwise be reasonably requested provided in connection therewithany final Order not subject to further appeal or any final binding settlement agreement.
Appears in 2 contracts
Sources: Funding and Indemnification Agreement (Gander Mountain Co), Funding and Indemnification Agreement (Gander Mountain Co)
Procedures for Indemnification. An indemnified The procedures for indemnification shall be as follows:
A. The party hereunder claiming the indemnification (the "Claimant") shall notify promptly give notice to the indemnifying party from whom indemnification is claimed (the "Indemnifying Party") of any claim, whether between the parties or brought by a third party, in writingspecifying (i) the factual basis for such claim, of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount or an estimate of (ii) the amount of the Claims and Lossesclaim. In If the event claim relates to an action, suit or proceeding filed by a third party against Claimant, such notice shall be given by Claimant within five (5) days after written notice of such action, suit or proceeding was given to Claimant.
B. Following receipt of notice from the Claimant of a claim, the Indemnifying Party shall have thirty (30) days to make such investigation of the claim as the Indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Claimant agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Claimant to substantiate the claim. If the Claimant and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any third partymutually agreed upon extension thereof) to the validity and amount of such claim, or if there is the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Claimant the full amount of the claim. If the Claimant and the Indemnifying Party do not agree within said period (or any mutually agreed upon extension thereof), the Claimant may seek appropriate legal remedy.
C. With respect to any claim against by a third party available by virtue as to which the Claimant is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense, to participate in or assume control of the circumstances defense of the Claims and Lossessuch claim, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties Claimant shall have cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable concluded that there may be actual out-of-pocket expenses incurred by the Claimant as the result of a conflict between request by the positions Indemnifying Party. If the Indemnifying Party elects to assume control of such parties in conducting the defense of any such actionthird-party claim, the indemnified party Claimant shall have the right to select separate legal counsel 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 such defense and control or otherwise participate in such action at the indemnifying party’s expense. The indemnified defense of any third party claim, it shall have the right to employ counsel separate from counsel employed be bound by the indemnifying party results obtained in any such action and to participate therein, but the fees and expenses of such counsel employed good faith by the indemnified party Claimant with respect to such claim.
F. The indemnification rights provided in Sections 10.2 and 10.3 shall extend to the shareholders, directors, officers, partners employees and representatives of the Claimant although for the purpose of the procedures set forth in this Section 10.4, any indemnification claims by such parties shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims made by and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if through the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithClaimant.
Appears in 2 contracts
Sources: Asset Purchase Agreement (American Radio Systems Corp /Ma/), Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Procedures for Indemnification. An indemnified Any claims for indemnification by any party entitled to indemnification hereunder (an "INDEMNIFIED PARTY") from any party hereunder (an "INDEMNITOR") under this ARTICLE XI shall notify be made by an Indemnified Party by delivery of a written notice to the indemnifying party, in writing, Indemnitor requesting indemnification (an "INDEMNIFICATION CLAIM") and specifying the basis on which indemnification is sought and the amount of any claim for indemnification, asserted Losses. Indemnitor shall have 30 days after the date on which the Indemnitor receives the notice of an Indemnification Claim to object to such Indemnification Claim by delivery of a written notice of such objection to the Indemnified Party specifying in reasonable detail the nature basis for such objection. If within 30 days after the date on which the Indemnitor receives the notice of the Claims and Losses and, if knownIndemnification Claim, the Indemnitor has not delivered to the Indemnified Party a notice objecting to all or any portion of the claimed Loss and setting forth the amount of such claimed indemnification for such Loss objected to and the reasons for such objection, the Indemnified Party shall be entitled to indemnification for such Loss, and the Indemnitor shall promptly pay the full amount of such Loss. If, within 30 days after the date on which the Indemnitor receives the notice of an Indemnification Claim, the Indemnitor delivers to the Indemnified Party an objection to all or an estimate any portion of the claimed Loss, setting forth the amount of such Loss objected to and the reasons for such objection, the Indemnified Party shall be entitled to reimbursement for the portion of such Loss not objected to by the Indemnitor and the Indemnitor shall promptly pay the full amount of so much of the Loss as to which the Indemnitor did not object.
(a) Upon determination of the amount of an Indemnification Claim, whether by agreement between the Claims Indemnitor and Losses. In the event of a claim Indemnified Party or by any third partyfinal adjudication, or if there is any claim against a third party available by virtue the Indemnitor shall pay the amount of such Indemnification Claim within 5 days of the circumstances date such amount is determined.
(b) The rights accorded to Indemnified Parties hereunder shall be in addition to any rights that any Indemnified Party may have at law or in equity.
(c) Any payment under this Article shall be treated for Tax purposes as an adjustment of the Claims Purchase Price to the extent such characterization is proper and Lossespermissible under the applicable U.S. Tax law, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountantsCode, at its cost Treasury regulations, court decisions and expense; providedadministrative promulgations or, howeveralternatively, by Buyer as an offset to a Tax benefit item, if such characterization is permissible under such Tax law.
(d) In no event shall the defendants in any such action include both aggregate liability of Seller for claims asserted pursuant to Section 11.1(i) and (iii) of this Agreement and Section 9.1 (i) and (iii) of the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right Asset Purchase Agreement (excluding indemnification with respect to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect Taxes, penalties, Brighton Governmental Claims, interest and collection costs thereof) exceed $700,000.
(e) Seller's obligation to indemnify Buyer under SECTION 11.1(v) above shall terminate on the business date which is the earlier of:
(i) Buyer's receipt of evidence that is satisfactory to the Buyer that all actual or financial condition potential Brighton Governmental Claims have been resolved, or (ii) expiration of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithapplicable statutes of limitation.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Intertape Polymer Group Inc), Stock Purchase Agreement (Spinnaker Industries Inc)
Procedures for Indemnification. An indemnified party hereunder (a) Any Buyer Indemnitee seeking indemnification under Section 8.1 shall notify give prompt written notice to Seller of the indemnifying party, in writing, assertion of any claim for indemnification, specifying that does not involve a Proceeding brought by a third party. The notice shall describe in reasonable detail the nature of the Claims and Losses andclaim, if known, the amount or an estimate of the amount of Damages attributable to the Claims claim to the extent feasible and Lossesthe basis of the request for indemnification under this Agreement.
(b) If a Buyer Indemnitee receives notice of a Proceeding brought by a third party for which the Buyer Indemnitee intends to assert an indemnification claim under Section 8.1 against Seller, then the Buyer Indemnitee shall give notice of the Proceeding to Seller no later than fifteen (15) Business Days before the answer or other response to the Proceeding is required to be made (the “Answer Period”). Seller shall assume the defense of any Proceeding by notice to Buyer Indemnitees no later than five (5) Business Days prior to the date by which an answer or other response to the Proceeding is required to be made. Any failure by either party to give the requisite notice within the time specified in this Section 8.3(b) will not relieve Seller of the obligation to indemnify Buyer Indemnitees or Buyer Indemnitees of the obligation to allow Seller to defend pursuant to this Section 8.3(b) except to the extent that the defense of any Proceeding is materially prejudiced by the delay.
(c) If Seller assumes the defense of a Proceeding pursuant to Section 8.3(a), then Seller may defend and conduct any proceedings or negotiations in connection with the Proceeding, take all other required steps or proceedings to settle or defend any Proceeding, and to employ counsel to contest any Proceeding in the name of the Buyer Indemnitees or otherwise. If Seller assumes the defense, the expenses of all proceedings, contests or lawsuits with respect to the Proceedings will be borne by Seller.
(d) If Seller does not assume the defense of, or if after so assuming Seller fails to defend, any Proceeding, then the Buyer Indemnitees may defend against any claim or Proceeding in the manner they may deem appropriate and the Buyer Indemnitees may settle any claim or Proceeding on the terms they deem appropriate, and Seller will promptly reimburse the Buyer Indemnitees for the amount of all expenses, legal and otherwise, reasonably and necessarily incurred by the Buyer Indemnitees in connection with the defense against and settlement of any claim or Proceeding.
(e) If in any Proceeding covered by the indemnification under this Agreement, a judgment is rendered against any of the Buyer Indemnitees, or any Lien in respect of any judgment attaches to any of the assets of any of the Buyer Indemnitees, Seller will upon any entry or attachment pay the relevant judgment in full or discharge the relevant Lien unless, at the expense and direction of Seller, an appeal is taken under which the execution of the judgment or satisfaction of the Lien is stayed. If and when a final judgment is rendered in any Proceeding, subject to indemnification under Section 8.1, Seller will satisfy any judgment or discharge any Lien before any of the Buyer Indemnitees is compelled to do so.
(f) Seller or the Buyer Indemnitees, as appropriate, shall have the right to participate in the defense of any Proceeding related to any indemnified Damages at its sole cost and expense and the cost and expense of that participation shall not be Damages subject to indemnification.
(g) In the event of a claim covered by Section 8.3(a) or a claim related to a Proceeding which Buyer defends pursuant to Section 8.3(b), Buyer Indemnitee will use good faith, commercially reasonable efforts to achieve a Reasonable Cost Response for any Environmental Liability or Environmental Condition. In addition, Buyer Indemnitee will provide Seller with notice of any meetings with third party, parties concerning the investigation or if there is response action and copies of any work plans for investigation or response action regarding any claim against a third party available covered by virtue Section 8.3(b) hereof related to any Environmental Liability or Environmental Condition. For purposes of the circumstances of the Claims and Lossesthis Agreement, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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.“
Appears in 2 contracts
Sources: Asset Purchase Agreement (Challenger Powerboats, Inc.), Asset Purchase Agreement (Execute Sports Inc)
Procedures for Indemnification. An In case any action, proceeding or claim is brought against an indemnified party hereunder shall notify in respect of which indemnification is sought hereunder, the indemnifying party shall be entitled to participate and, unless in the reasonable judgment of legal counsel to the indemnified party a conflict of interest between the indemnified party and the indemnifying party may exist with respect of such action, proceeding or claim, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. In the event that the indemnifying party fails, within thirty (30) days of receipt of any indemnification notice, to notify, in writing, of any claim for indemnification, specifying in reasonable detail the nature such person of the Claims indemnifying party’s election to defend, settle or compromise, at its sole cost and Losses andexpense, if knownany action, proceeding or claim (or discontinues its defense at any time after it commences such defense), then the amount indemnified party may, at its option, defend, settle or an estimate of the amount of the Claims and Lossesotherwise compromise or pay such action or claim. In the event of a claim by any third partyevent, or if there is any claim against a third party available by virtue of the circumstances of the Claims unless and Losses, until the indemnifying party may elects in writing to assume and does so assume the defense of any such claims, proceeding or action, the prosecution thereof by prompt written notice indemnified party’s costs and expenses arising out of the defense, settlement or compromise of any such action, claim or proceeding shall be losses subject to indemnification hereunder. The indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both shall cooperate fully with the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the connection with any negotiation or defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. The indemnified party shall have the right to employ counsel separate from counsel employed claim or proceeding by the indemnifying party in and shall furnish to the indemnifying party all information reasonably available to the indemnified party which relates to such action, claim or proceeding. The indemnifying party shall keep the indemnified party fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. If the indemnifying party elects to defend any such action and to participate thereinor claim, but the fees and expenses of such counsel employed by then the indemnified party shall be entitled to participate in such defense using counsel of its choice at its sole cost and expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses action, claim or proceeding effected without its prior written consent. Notwithstanding anything in this Article 7 to the contrary, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified partyshall not, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether , settle or compromise any claim or consent to entry of any judgment in respect thereof which imposes any future obligation on the indemnified party or which does not include, as an unconditional term thereof, the indemnifying giving by the claimant or the plaintiff to the indemnified party chooses to so defend or prosecute of a release from all liability in respect of such claim, both parties 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.
Appears in 2 contracts
Sources: VPC Sublicense Agreement, VPC Sublicense Agreement (Liquidmetal Technologies Inc)
Procedures for Indemnification. An indemnified Any claims for indemnification by any party entitled to indemnification hereunder (an "INDEMNIFIED PARTY") from any party hereunder (an "INDEMNITOR") under this ARTICLE IX shall notify be made by an Indemnified Party by delivery of a written notice to the indemnifying party, in writing, Indemnitor requesting indemnification (an "INDEMNIFICATION CLAIM") and specifying the basis on which indemnification is sought and the amount of any claim for indemnification, asserted Losses. Indemnitor shall have 30 days after the date on which the Indemnitor receives the notice of an Indemnification Claim to object to such Indemnification Claim by delivery of a written notice of such objection to the Indemnified Party specifying in reasonable detail the nature basis for such objection. If within 30 days after the date on which the Indemnitor receives the notice of the Claims and Losses and, if knownIndemnification Claim, the Indemnitor has not delivered to the Indemnified Party a notice objecting to all or any portion of the claimed Loss and setting forth the amount of such claimed indemnification for such Loss objected to and the reasons for such objection, the Indemnified Party shall be entitled to indemnification for such Loss, and the Indemnitor shall promptly pay the full amount of such Loss. If, within 30 days after the date on which the Indemnitor receives the notice of an Indemnification Claim, the Indemnitor delivers to the Indemnified Party an objection to all or an estimate any portion of the claimed Loss, setting forth the amount of such Loss objected to and the reasons for such objection, the Indemnified Party shall be entitled to reimbursement for the portion of such Loss not objected to by the Indemnitor and the Indemnitor shall promptly pay the full amount of so much of the Loss as to which the Indemnitor did not object.
(a) Upon determination of the amount of an Indemnification Claim, whether by agreement between the Claims Indemnitor and Losses. In the event of a claim Indemnified Party or by any third partyfinal adjudication, or if there is any claim against a third party available by virtue the Indemnitor shall pay the amount of such Indemnification Claim within 5 days of the circumstances date such amount is determined.
(b) The rights accorded to Indemnified Parties hereunder shall be in addition to any rights that any Indemnified Party may have at law or in equity.
(c) Any payment under this Article shall be treated for Tax purposes as an adjustment of the Claims Purchase Price to the extent such characterization is proper and Lossespermissible under the applicable U.S. Tax law, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountantsCode, at its cost Treasury regulations, court decisions and expense; providedadministrative promulgations or, howeveralternatively, by Buyer as an offset to a Tax benefit item, if such characterization is permissible under such Tax law.
(d) In no event shall the defendants in any such action include both aggregate liability of Seller and Parent for claims asserted pursuant to Section 9.1(i) and 9.1(iii) of this Agreement and Section 11.1(i) and 11.1(iii) of the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right Stock Purchase Agreement (excluding indemnification with respect to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claimTaxes, both parties shall cooperate in the defense or prosecution thereof penalties, Brighton Governmental Claims, interest 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 therewithcollection costs thereof) exceed $700,000.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Spinnaker Industries Inc), Asset Purchase Agreement (Intertape Polymer Group Inc)
Procedures for Indemnification. An indemnified Promptly after service of notice of any claim or of process by any third person in any matter in respect of which indemnity may be sought from a party hereunder shall pursuant to this Agreement, the party so served will notify the indemnifying party, in writing, of any claim for indemnification, specifying in reasonable detail the nature party of the Claims and Losses and, if known, receipt thereof. The indemnifying party will have the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third partyright to participate in, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountantsassume, at its cost and own expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such actionclaim or process (with counsel reasonably acceptable to the indemnified party) or settlement thereof. After notice from the indemnifying party of its election so to assume the defense thereof, the indemnifying party will not be liable to the indemnified party shall have the right to select separate for any legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed or other expense incurred by the indemnified party shall in connection with such defense. Such defense will be at its expenseconducted expeditiously (but with due regard for obtaining the most favorable outcome reasonably likely under the circumstances, taking into account costs and expenditures) and the indemnified party will be advised promptly of all material developments. The indemnifying party will not settle any such claim without the prior written consent of the indemnified party, which consent shall not be liable for unreasonably withheld or delayed. With respect to any matter which is the subject of any such claim and as to which the indemnified party fails to give the other party such notice as aforesaid, and such failure adversely affects the ability of the indemnifying party to defend such claim or materially increases the amount of indemnification which the indemnifying party is obligated to pay hereunder, the amount of indemnification which the indemnified party will be entitled to receive will be reduced to an amount which the indemnified party would have been entitled to receive had such notice been timely given. No settlement of any such Claims and Losses effected claim as to which the indemnifying party has not elected to assume the defense thereof will be made without its the prior written consentconsent of the indemnifying party, which shall consent will not be unreasonably withheld; provided that if the indemnifying party does not assume the defense withheld or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithdelayed.
Appears in 1 contract
Procedures for Indemnification. An indemnified (a) If a party hereunder shall notify entitled to indemnification under this Section 10 (an “Indemnitee”) asserts that a party obligated to indemnify it under this Section 10 (an “Indemnitor”) has become obligated to such Indemnitee pursuant to Section 10.2 or 10.3, as the indemnifying party, in writing, of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third partycase may be, or if there any suit, action, investigation, claim or proceeding is any claim against begun, made or instituted as a third party available by virtue result of which the circumstances of the Claims and LossesIndemnitor may become obligated to an Indemnitee hereunder, the indemnifying party may assume the defense or the prosecution thereof by such Indemnitee shall give prompt written notice thereof to indemnified party including the employment of counsel or accountants, at its cost and expenseIndemnitor; provided, however, if that no delay in delivering such written notice to the defendants in Indemnitor shall relieve the Indemnitor from any such action include both obligation hereunder, unless, and then solely to the indemnifying party and extent that, the indemnified party and such parties Indemnitor is actually prejudiced thereby.
(b) The Indemnitor shall have reasonable concluded the right, at its sole cost and expense, to participate in, and, to the extent that there it may wish, assume the defense of, any suit, action, investigation, claim or proceeding asserted by any third party against an Indemnitee that may result in the incurrence by such Indemnitee of Losses for which such Indemnitee would be a conflict between entitled to indemnification pursuant to this Section 10; provided, however, that the positions of such parties in conducting Indemnitor shall not be entitled to assume the defense of any such suit, action, investigation, claim or proceeding, if (a) the indemnified party Indemnitee reasonably determines that the amount of the Losses in respect of such suit, action, investigation, claim or proceeding, if successful, would be likely to exceed the Indemnitor’s liability under this Agreement or (b) such suit, action, investigation, claim or proceeding involves an allegation of the violation of Applicable Law (including fiduciary and regulatory requirements thereunder) or seeks any non-monetary remedy. The Indemnitee shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of the Indemnitee’s choice (except that the Indemnitor shall be responsible for the fees and expenses of one separate co-counsel for all Indemnitees to the extent the Indemnitee is advised, in writing by its counsel, that either (i) the counsel the Indemnitor has selected has a conflict of interest or (ii) there are legal defenses available to the Indemnitee that may be materially different from or additional to those available to the Indemnitor) and the Indemnitee shall in any event cooperate with and assist the Indemnitor to the extent reasonably possible. If the Indemnitor does not timely assume the defense of, contest or otherwise protect against such suit, action, investigation, claim or proceeding, the Indemnitee shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. The indemnified party shall have do so, including, without limitation, the right to employ counsel separate make any compromise or settlement thereof, and the Indemnitee shall be entitled to recover the entire cost thereof from counsel employed by the indemnifying party Indemnitor, including, without limitation, reasonable attorneys’ fees, disbursements and amounts paid as the result of such suit, action, investigation, claim or proceeding, in each case subject to the limitations set forth herein; provided that the Indemnitee shall not settle any such action and suit, action, investigation, claim or proceeding without the consent of the Indemnitor (such consent not to participate therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided , conditioned or delayed) and shall keep the Indemnitor reasonably apprised of the status of the applicable suit, action, investigation, claim or proceeding and any efforts to settle the same upon request of the Indemnitor.
(c) With respect to any suit, action, investigation, claim or proceeding that if the indemnifying party Indemnitor assumes the defense of in accordance with Section 10.4(b), the Indemnitor shall not consent to the entry of a judgment or enter into any settlement with respect thereto, unless (i) the judgment or settlement provides solely for the payment of monetary damages and does not impose injunctive or other equitable relief against the Indemnitee and (ii) the plaintiff or claimant in the matter releases the Indemnitee from all liability or wrongdoing with respect thereto, in each case of clauses (i) and (ii) above, without the written consent of the Indemnitee (not to be unreasonably withheld or delayed). For the avoidance of doubt, the Indemnitor shall not consent to the entry of a judgment or enter into any settlement with respect to any suit, action, investigation, claim or proceeding for which the Indemnitor does not assume the defense or prosecution in accordance with Section 10.4(b).
(d) In all cases in determining whether there has been a breach of a thirdrepresentation or warranty by the Buyer or any Seller for purposes of Section 10, or in determining the amount of any Losses with respect to a breach of a representation or warranty by the Buyer or any Seller for purposes of Section 10, such representations and warranties shall be read without regard to any materiality qualifier (including, without limitation, any reference to Material Adverse Effect or material adverse effect) contained therein; provided, however, that this Section 10.4(d) shall not apply to the representations or warranties contained in Section 5.7(a), Section 5.20, Section 5.21(a), Section 5.21(k), Section 5.25, or Section 6.10.
(e) The indemnification provided for in Section 10 shall survive any investigation at any time made by or on behalf of the Indemnitee or any knowledge or information that the Indemnitee may have.
(f) All Losses recoverable by an Indemnitee shall be net of (i) insurance proceeds received by such Indemnitee or its Affiliates and (ii) any other amounts recovered and received by an Indemnitee or its Affiliates from a third party or the Funds, whether by way of payment, discount, credit, off-set, counterclaim, indemnification (including, without limitation, indemnification by any Fund), contribution or otherwise, net of any costs incurred to pursue such recovery; provided, however, that an Indemnitee shall have no obligation to seek recovery from insurance or any other indemnification, contribution or other payment. If any such insurance proceeds and/or other amounts are received by an Indemnitee or its Affiliates after the Indemnitor pays any amount pursuant to this Section 10, the Indemnitee shall promptly repay to the Indemnitor the amount such Indemnitor would not have had to pay pursuant to this Section 10 had such proceeds and/or other amounts been received by the Indemnitee or its Affiliates prior to such Indemnitor’s payment under this Section 10 to the Indemnitee.
(g) Each party claim acknowledges and agrees that, except as provided above within thirty in Section 7.5(d), Section 8.4(d) and Section 15.10 or in the case of fraud with scienter, its sole and exclusive remedy following the Closing with respect to any and all claims under or relating to this Agreement shall be pursuant to the indemnification provisions set forth in this Section 10.
(30h) Days after notice thereof No Indemnitee shall be entitled to double recovery for any indemnifiable Loss by reason of the state of facts giving rise to such Loss, even though such Loss may have resulted from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement breach of any Claims and Losses which provides for any relief other more than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition one of the indemnified party without the indemnified party’s prior written consent. Whether representations, warranties and covenants, or not the indemnifying party chooses to so defend or prosecute such claimany other indemnity, both parties 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 therewiththis Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (P10, Inc.)
Procedures for Indemnification. An Promptly after receipt by an indemnified party hereunder of notice of the commencement of any action involving the subject matter of the provisions of Section 10.2 or 10.3, such indemnified party shall, if a claim is to be made against an indemnifying party pursuant to the provisions of Section 10.2 or Section 10.3, promptly notify such indemnifying party of the commencement of such action; but the omission so to notify such indemnifying party shall notify not relieve the indemnifying party from any liability which it may have to the indemnified party, in writing, of any claim for indemnification, specifying in reasonable detail . In case such action is brought against an indemnified party and it notifies the nature indemnifying party of the Claims and Losses and, if known, the amount or an estimate commencement of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Lossessuch action, the indemnifying party shall have the right to participate in and, to the extent that it may wish, to assume the defense or the prosecution thereof by prompt written notice of such action, with counsel satisfactory to such indemnified party including the employment of counsel or accountants, at its cost and expenseparty; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party and such parties shall have reasonable reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party, or if there is a conflict between of interest which would prevent counsel for the positions of such parties in conducting indemnifying party from also representing the defense of any such actionindemnified party, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in the defense of such action on behalf of such indemnified party, at the expense of the indemnifying party’s expense. The indemnified party shall have the right to employ counsel separate After notice from counsel employed by the indemnifying party in any such action and to participate therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The of the indemnifying party's election so to assume the defense of such action, the indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, to the indemnified party may settle pursuant to the provisions of Sections 10.2 or 10.3 for any legal or other expense subsequently incurred by such claim without indemnified party in connection with the indemnifying party’s consent. The defense of such action 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 agree have employed counsel satisfactory to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without to represent the indemnified party’s prior written consent. Whether party within a reasonable time after the notice of the commencement of the action, or not (c) the indemnifying party chooses has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party shall, except with the consent of each indemnified party, consent to so defend entry of any judgment or prosecute enter into any settlement which does not include as an unconditional term of such settlement the release of all indemnified parties from all liability in respect of such claim, both parties 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.
Appears in 1 contract
Sources: Merger Agreement (Infocast Corp /Nv)
Procedures for Indemnification. An indemnified party (a) Promptly after receipt by a Party entitled to indemnification hereunder shall notify (the indemnifying party, in writing, “Indemnitee”) of written notice of the assertion or the commencement of any claim for indemnificationLitigation by a third party with respect to any matter referred to in Sections 8.3(a) or 8.3(b), specifying in reasonable detail the nature Indemnitee shall give written notice thereof to the Party obligated to indemnify the Indemnitee (the “Indemnitor”), which notice shall include a description of the Claims and Losses and, if knownclaim or Litigation, the amount thereof (if known and quantifiable) and the basis for the claim or an estimate of Litigation, and thereafter shall keep the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expenseIndemnitor reasonably informed with respect thereto; provided, however, if that failure of the defendants Indemnitee to give the Indemnitor notice as provided herein shall not relieve the Indemnitor of its obligations hereunder except to the extent that the Indemnitor is actually prejudiced thereby.
(b) Any Indemnitor shall be entitled to participate in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such actionclaim or Litigation giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, and at its option (subject to the indemnified party limitations set forth below) shall have the right to select separate legal counsel be entitled to assume the defense thereof by appointing a reputable counsel reasonably acceptable to the Indemnitee to be the lead counsel in connection with such defense and otherwise defense; provided, however, that:
(i) the Indemnitee shall be entitled to participate in the defense of such action at the indemnifying party’s expense. The indemnified party shall have the right claim or Litigation and to employ counsel separate from counsel employed by the indemnifying party in any of its choice for such action and to participate thereinpurpose, but so long as the fees and expenses of such separate counsel employed are borne by the indemnified party Indemnitee;
(ii) if the Indemnitor elects to control the defense of any such claim or Litigation, then the Indemnitor shall be at its expense. The indemnifying party shall not be liable for obtain the prior written consent of the Indemnitee before entering into any settlement of a claim or Litigation or ceasing to defend such claim or Litigation if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnitee or if such settlement does not expressly and unconditionally release the Indemnitee from all Liabilities with respect to such claim or Litigation, without prejudice; and
(iii) if the Indemnitor does not elect to control the defense of any such Claims and Losses effected without its claim or Litigation, then the Indemnitee shall obtain the prior written consentconsent of the Indemnitor before entering into any settlement of a claim or Litigation or ceasing to defend such claim or Litigation if, which shall not pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be unreasonably withheld; provided that imposed against the Indemnitor or if the indemnifying party such settlement does not assume expressly and unconditionally release the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof Indemnitor from the indemnified party, the indemnified party may settle all Liabilities with respect to such claim or Litigation, without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithprejudice.
Appears in 1 contract
Procedures for Indemnification. An indemnified Promptly after service of notice of any claim or of process by any third person in any matter in respect of which indemnity may be sought from a party hereunder shall pursuant to this Agreement, the Party so served will notify the indemnifying party, in writing, of any claim for indemnification, specifying in reasonable detail the nature party of the Claims and Losses and, if known, receipt thereof. The indemnifying party will have the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third partyright to participate in, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountantsassume, at its cost and own expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such actionclaim or process (with counsel reasonably acceptable to the indemnified party) or settlement thereof. If the indemnifying party elects to participate in or assume the defense of any such claim or process, it shall have reasonable access to all relevant materials and information to allow it to do so. After notice from the indemnifying party of its election to assume the defense thereof, the indemnifying party will not be liable to the indemnified party shall have the right to select separate for any legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed or other expense incurred by the indemnified party shall in connection with such defense. Such defense will be at its expenseconducted expeditiously (but with due regard for obtaining the most favorable outcome reasonably likely under the circumstances, taking into account costs and expenditures) and the indemnified party will be advised promptly of all material developments. The indemnifying party will not settle any such claim without the prior written consent of the indemnified party, which consent shall not be liable for unreasonably withheld or delayed. With respect to any matter which is the subject of any such claim and as to which the indemnified party fails to give the other party such notice as aforesaid, and such failure adversely affects the ability of the indemnifying party to defend such claim or materially increases the amount of indemnification which the indemnifying party is obligated to pay hereunder, the amount of indemnification which the indemnified party will be entitled to receive will be reduced to an amount which the indemnified party would have been entitled to receive had such notice been timely given. No settlement of any such Claims and Losses effected claim as to which the indemnifying party has not elected to assume the defense thereof will be made without its the prior written consentconsent of the indemnifying party, which shall consent will not be unreasonably withheld; provided that if the indemnifying party does not assume the defense withheld or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithdelayed.
Appears in 1 contract
Sources: Purchase Agreement (Keyspan Corp)
Procedures for Indemnification. An indemnified The procedure for indemnification shall be as follows:
(a) The party hereunder claiming indemnification (the "Claimant") shall notify give written notice to the indemnifying party, in writing, party from which indemnification is sought (the "Indemnitor") promptly after the Claimant learns of any claim for indemnificationaction, specifying suit or proceeding, the assertion of any claim, or the incurrence of any other Loss covered by the foregoing agreements to indemnify and hold harmless the Claimant, describing in reasonable reasonably detail the nature Loss and the basis on which indemnification is (or, under such assumption, could be) sought. The failure to provide prompt notice shall not be deemed to jeopardize Claimant's right to demand indemnification hereunder, provided that Indemnitor is not prejudiced by the delay in receiving notice. If Indemnitor is prejudiced, the Claimant's right to indemnification hereunder for the applicable Loss shall be reduced according to the extent of the Claims and Losses andprejudice caused by the delay.
(b) With respect to claims between the parties, if knownfollowing receipt of notice from the Claimant of a claim, the amount or an estimate Indemnitor shall have 30 days to make any investigation of the claim that the Indemnitor deems necessary or desirable, or such lesser time if a 30 day period would jeopardize any rights of Claimant to oppose or protest the claim. For the purpose of this investigation, the Claimant agrees to make available to the Indemnitor and its authorized representatives the information relied upon by the Claimant to substantiate the claim. If the Claimant and the Indemnitor cannot agree as to the validity and amount of the Claims and Losses. In claim within the event of 30-day period, or lesser period if required by this Section (or any mutually agreed upon extension hereof) the Claimant may seek appropriate legal remedies.
(c) If an indemnification claim hereunder involves a claim by of any third party, or if there is any claim against party (a third party available by virtue of the circumstances of the Claims and Losses"Third Party Claim"), the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party Indemnitor shall have the right to select separate legal undertake in a reasonable manner, by counsel or other representatives of its own choosing, the defense of such claim to assume the extent such Losses are not reasonably likely, together with any and all other Losses for which Claimant has theretofore claimed indemnity hereunder, to exceed the applicable Indemnity Cap (as hereinafter defined). In the event that the Indemnitor shall elect not to undertake such defense and otherwise participate in or shall fail to defend such action at Third Party Claim, the indemnifying party’s expense. The indemnified party Claimant shall have the right to employ undertake in a reasonable manner the defense, compromise or settlement of such Third Party Claim, by counsel separate from counsel employed by or other representatives of its own choosing, on behalf of and for the indemnifying party account and risk of the Indemnitor. Anything in any such action and this Section 8.3 to the contrary notwithstanding, (i) the Claimant shall have the right to participate thereinin the defense, but the fees and expenses compromise or settlement of such counsel employed by Third Party Claim (A) at Indemnitor's cost and expense, if such Third Party Claim could reasonably be expected to result in a non-monetary relief which materially and adversely affects the indemnified party Claimant or (B) at Claimant's cost and expense, if such Third Party Claim could not reasonably be expected to result in a non-monetary relief which materially and adversely affects the Claimant, (ii) the Indemnitor shall be at its expense. The indemnifying party shall not, without the Claimant's written consent (such consent not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not to be unreasonably withheld; provided that if the indemnifying party ), settle or compromise any Third Party Claim or consent to entry of any judgment which does not assume include as an unconditional term thereof the defense or prosecution giving by the plaintiff to the Claimant of a third-party claim as provided above within thirty release from all liability in respect of such Third Party Claim, and (30iii) Days after notice thereof from in the indemnified partyevent that the Indemnitor undertakes defense of any Third Party Claim consistent with this Section, the indemnified party may settle Claimant, by counsel or other representative of its own choosing and at the Claimant's sole cost and expense, shall have the right to consult with the Indemnitor and its counsel or other representatives concerning such claim without Third Party Claim and the indemnifying party’s consentIndemnitor and the Claimant and their respective counsel or other representatives shall cooperate with respect to such Third Party Claim. The indemnifying party If any disagreement arises in the joint handling of such Third Party Claim, the Indemnitor shall not agree have the right to a settlement make the final determination consistent with the requirements of this Section.
(d) If any payment is made pursuant to this Section, the Indemnitor shall be subrogated to the extent of such payment (reduced by the aggregate amount of any Claims and all Losses incurred by Claimant for which provides for any relief other Claimant is not entitled to receive indemnification payments hereunder because such Losses are less than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition applicable Basket Amount, are in excess of the indemnified party without applicable Indemnity Cap or otherwise (the indemnified party’s prior written consent"Unreimbursed Amounts") to all of the rights of recovery of Claimant, and Claimant shall assign to Indemnitor, for its use and benefit, any and all claims, causes of actions, and demands of whatever kind and nature that Claimant may have against the person, firm, corporation or entity giving rise to the Loss for which payment was made. Whether or not the indemnifying party chooses Claimant agrees to so defend or prosecute such claim, both parties shall reasonably cooperate in any efforts by Indemnitor to recover such Loss from any person, firm, corporation or entity. Notwithstanding anything herein to the defense or prosecution thereof and shall furnish such recordscontrary, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as the Indemnitor's subrogation rights under this Section are expressly subordinate to any claims that the Claimants may be reasonably requested in connection therewithhave with respect to Unreimbursed Amounts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Liberty Group Operating Inc)
Procedures for Indemnification. An Except as otherwise provided in Sections 6.1 and 6.2, subject to the limitations imposed by Section 8.1, promptly after receipt by an indemnified party pursuant to the provisions of this Article VI of notice of the commencement of any action, claim or proceeding involving the subject matter of the foregoing indemnity provisions, such indemnified party shall, if a claim thereof is to be made against an indemnifying party pursuant to the 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, and only to the extent that, such omission shall notify have materially adversely affected the indemnifying party' s ability to defend such action, in writingclaim or proceeding. In case such action, of any claim for indemnification, specifying in reasonable detail or proceeding is brought against an indemnified party and it notifies the nature indemnifying party of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Lossescommencement thereof, the indemnifying party shall have the right to participate in, and, to the extent that it may wish, to assume the defense or the prosecution thereof by prompt written notice conduct thereof, with counsel reasonably satisfactory to such indemnified party including the employment of counsel or accountants, at its cost and expenseparty; provided, however, (i) if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party and such parties shall have reasonable reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party, or if there is a conflict between of interest which would reasonably be expected to prevent counsel for the positions of such parties in conducting indemnifying party from also representing the defense of any such actionindemnified party, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in the defense of such action on behalf of such indemnified party at the indemnifying party’s expense. The indemnified 's expense and (ii) if the claim or proceeding involves a Tax or an audit, examination, investigation, appeal, suit or other proceeding involving the determination of any Tax, the indemnifying party shall not have the right to employ counsel separate from counsel employed by assume the indemnifying defense or conduct thereof, which defense or conduct shall instead remain within the sole power and authority of the indemnified party in any such action and to participate therein, but the fees and expenses of such counsel employed by except that the indemnified party shall not settle such matter without the written consent of the indemnifying party, which consent shall not be at unreasonably withheld taking into the account the circumstances of the indemnified party. After notice from the indemnifying party to such indemnified party of its expense. The election so to assume the defense thereof, the indemnifying party shall not be liable to the indemnified party for any settlement 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 reasonably 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 the expense of the indemnifying party. No indemnifying party, in the defense of any such Claims and Losses effected without its prior written consentclaim or litigation, shall, except with the consent of each indemnified party which consent shall not be unreasonably withheld; provided that if the indemnifying party , consent to entry of any judgment or enter into any settlement which does not assume include as an unconditional term thereof the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof release from the indemnified party, the indemnified party may settle all liability in respect to such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithlitigation.
Appears in 1 contract
Sources: Stock Purchase Agreement (Argan Inc)
Procedures for Indemnification. (a) An indemnified party hereunder Indemnification Claim shall notify be made by the indemnifying partyIndemnitee by delivery of a written notice to the Indemnitor Representative requesting indemnification and specifying the basis on which indemnification is sought and the amount of asserted Losses and, in writingthe case of a Third Party Claim, containing (by attachment or otherwise) such other information as the Indemnitee shall have concerning such Third Party Claim. No Indemnification Claim or series of any related claims shall be made for an amount less than $10,000.
(b) If the Indemnification Claim involves a Third Party Claim, the procedures set forth in Section 9.3 hereof shall be ----------- observed by the Indemnitee and the Indemnitor Representative.
(c) If the Indemnification Claim involves a matter other than a Third Party Claim, the Indemnitor Representative shall have sixty (60) days to investigate such claim for indemnificationand, if applicable, to object to such Indemnification Claim by delivery of a written notice of such objection to the Indemnitee specifying in reasonable detail the nature basis for such objection. Failure to timely so object shall constitute a final and binding acceptance of the Claims Indemnification Claim by the Indemnitor Representative, and Losses and, if knownthe Indemnification Claim shall be paid in accordance with Section 9.2(d) hereof. If an objection is timely interposed by the -------------- Indemnitor Representative, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party Indemnitee and the indemnified party and Indemnitor Representative shall use their reasonable commercial efforts to resolve such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above dispute within thirty (30) Days after notice thereof days from the indemnified partydate the Indemnitee receives such objection.
(d) Upon determination of the amount of an Indemnification Claim whether by agreement between the Indemnitor Representative and the Indemnitee or by settlement or final adjudication, the indemnified party may settle amount of such Indemnification Claim shall be paid within ten (10) days of the date such amount is determined. If the Indemnitor responsible for payment of such Indemnification Claim is Purchaser, such payment shall be made by wire transfer to Seller. If the Indemnitor responsible for payment of such indemnification is Seller, such payment shall be made by wire transfer to Purchaser.
(e) If the Indemnification Claim involves a clean-up or remediation of Owned Real Property or the Leased Real Property pursuant to applicable requirements of Law, the Purchaser shall have sole control and management authority over the resolution of any such claim without (including hiring, at reasonable expense, legal counsel and environmental consultants, conducting environmental investigations and cleanups), provided; however, that Purchaser shall reasonably consult with Indemnitor Representative concerning the indemnifying party’s consentstatus of such claim. The indemnifying party shall not agree Notwithstanding anything herein to a the contrary, no settlement of any Claims and Losses which provides for any relief other than such claim or action shall be made by Purchaser without the payment of monetary damages prior written consent by or which could have a material precedential impact or effect on the business or financial condition behalf of the indemnified party without the indemnified party’s prior written consent. Whether Indemnitor Representative, which consent shall not be unreasonably withheld or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithdelayed.
Appears in 1 contract
Sources: Stock Purchase Agreement (Poser Business Forms Inc)
Procedures for Indemnification. An Promptly after receipt by an indemnified party hereunder under sections 8.1 or 8.2 of notice of the commencement of any action for which indemnification may be available under section 8.1 or 8.2 such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under such section, give notice to the indemnifying party of the commencement thereof, but the failure so to notify the indemnifying party shall notify not relieve it of any 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 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 the indemnifying party without the 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 rights of any person and no effect on any other claims that may be made against the indemnified party and (ii) the 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). If notice is given to an indemnifying part of the commencement of any action and it does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense thereof, the indemnifying party shall be bound by any determination made in such action or any compromise or settlement thereof effected by the 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, in writing, of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense exclusive right to defend, compromise or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any settle such action, but the indemnified indemnifying party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for bound by any determination of an action so defended or any compromise or settlement of any such Claims and Losses thereof effected without its prior written consent, consent (which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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).
Appears in 1 contract
Procedures for Indemnification. An indemnified party 14.6.1 Each Indemnified Party shall promptly give notice hereunder shall notify to the indemnifying party, in writing, Party after becoming aware of any claim for indemnification, specifying in reasonable detail as to which recovery may be sought against the nature indemnifying Party because of the Claims and Losses indemnity in this Article XIV, and, if known, such indemnity shall arise from the amount or an estimate of the amount of the Claims and Losses. In the event claim of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, shall permit the indemnifying party may Party to assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such actionclaim and any litigation or other proceeding resulting from such claim; PROVIDED, that any Indemnified Party may, in any event, at its own expense, monitor and participate in, but not control, the indemnified party shall have defense of any such claim or litigation. Notwithstanding the foregoing, the right to select separate legal counsel indemnification EXECUTION COPY hereunder shall not be affected by any failure of an Indemnified Party to assume give such defense notice (or by delay by an Indemnified Party in giving such notice) unless, and otherwise participate then only to the extent that, the rights and remedies of the indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such action notice. The notice required hereunder shall specify the basis for the claim for indemnification to the extent ascertainable at the indemnifying party’s expensetime of the notice. The indemnified party shall have the right to employ counsel separate from counsel employed Failure by the indemnifying party in Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within thirty (30) days after notice thereof shall have been given to the indemnifying Party shall be deemed a waiver by the indemnifying Party of its right to defend such claim or action. Nothing herein shall be deemed to prevent an Indemnified Party from making a contingent claim for indemnification hereunder, provided the Indemnified Party has reasonable grounds to believe that the claim or demand for indemnification will be made and to participate therein, but sets forth the fees and expenses estimated amount of such counsel employed by claim to the indemnified party shall be at its expense. extent then ascertainable.
14.6.2 The indemnifying party Party shall not be liable for not, in the defense of such claim or any settlement litigation resulting therefrom, consent to entry of any such Claims and Losses effected judgment (other than a judgment of dismissal on the merits without its prior costs) or enter into any settlement, except with the written consent, which consent shall not be unreasonably withheld; provided that if , of the Indemnified Party, which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a release from all liability in respect of such claim or litigation.
14.6.3 If the indemnifying party does Party shall not assume the defense of any such claim by a third party, or prosecution litigation resulting therefrom, after receipt of a third-party notice from the Indemnified Party, the Indemnified Party may defend against such claim or litigation in such manner as provided above it deems appropriate.
14.6.4 If the indemnifying Party shall not, within thirty (30) Days days after its receipt of the notice thereof from required by Section 14.7.1 hereof, advise the indemnified partyIndemnified Party that the indemnifying Party denies the right of the Indemnified Party to indemnity in respect of the claim, then the indemnified party may settle amount of such claim without shall be deemed to be finally determined between the Parties hereto. If the indemnifying party’s consent. The indemnifying party Party shall not agree notify the Indemnified Party that it disputes any claim made by the Indemnified Party, then the Parties hereto shall endeavor to a settlement of any Claims settle and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute compromise such claim, both parties and if unable to agree on any settlement or compromise, such claim for indemnification shall cooperate be settled by appropriate litigation, and any liability established by reason of such settlement, compromise or litigation shall be deemed to be finally determined. Any claim that is finally determined in the defense or prosecution thereof and manner set forth above shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested paid promptly by the indemnifying Party in connection therewithcash.
Appears in 1 contract
Sources: Asset Purchase Agreement (Advanced Communications Technologies Inc)
Procedures for Indemnification. An indemnified (a) If a claim is made by any Taxing authority, which, if successful, might result in an indemnity payment by a party hereunder ("Tax Indemnitor") to another ("Tax Indemnitee") pursuant to Section 11.02, Tax Indemnitee shall promptly notify the indemnifying partyTax Indemnitor in writing of such claim (a "Tax Claim"). If notice of a Tax Claim is not given to Tax Indemnitor within a sufficient period of time to allow Tax Indemnitor to effectively contest such Tax Claim, in writing, of any claim for indemnification, specifying or in reasonable detail to apprise Tax Indemnitor of the nature of the Claims Tax Claim, in each case taking into account the facts and Losses circumstances with respect to such Tax Claim, Tax Indemnitor shall not be liable to Tax Indemnitee to the extent that Tax Indemnitor's ability to effectively contest such Tax Claim is actually prejudiced as a result thereof.
(b) With respect to any Tax Claim, Tax Indemnitor shall control all proceedings taken in connection with such Tax Claim (including, without limitation, selection of counsel) and, if knownwithout limiting the foregoing, may in its sole discretion pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any Taxing authority with respect thereto and may, in its sole discretion, either pay the amount Tax claimed and sue ▇▇▇ a refund where applicable law permits such refund suits or an estimate of contest the amount of the Claims and Losses. In the event of a claim by Tax Claim in any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expensepermissible manner; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party Tax Indemnitor shall not be liable for any settlement of any such Claims settle or compromise a Tax Claim without giving thirty (30) days notice to Tax Indemnitee and Losses effected without its prior written Tax Indemnitee's consent, which shall not be unreasonably withheld; provided that , if the indemnifying party does not assume the defense such settlement or prosecution compromise would result in a material Tax Liability of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified partyTax Indemnitee or members of its affiliated group for any Taxable period. If Tax Indemnitee reasonably withholds its consent, the indemnified party may settle indemnification obligation of Tax Indemnitor to Tax Indemnitee under this Article XI shall be limited to the amount of such claim without settlement or compromise, and Tax Indemnitee shall have the indemnifying party’s consent. The indemnifying party shall not agree right to a settlement take over the control of any Claims proceedings with respect to such Tax Claim at its own expense.
(c) Buyer and Losses Seller shall cooperate with each other in contesting any Tax Claim, which provides cooperation shall include, without limitation, granting powers of attorney to the party who is entitled to control the proceedings, retaining and providing records and information that are reasonably relevant to such Tax Claim, and making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder or to testify at proceedings relating to such Tax Claim.
(d) Any payment under this Article IX shall be treated for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition tax purposes as an adjustment of the indemnified party without Purchase Price to the indemnified party’s prior written consent. Whether or not extent such characterization is proper and permissible under relevant Tax authorities, including court decisions, statutes, regulations and administrative promulgations.
(e) The indemnification obligations of the indemnifying party chooses parties hereunder shall survive until the expiration of the applicable statute of limitations relating to so defend or prosecute such claim, both parties 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 therewithTaxes that are the subject of the indemnification obligation.
Appears in 1 contract
Procedures for Indemnification. An indemnified Any party seeking indemnification hereunder (an “Indemnitee”) shall notify the indemnifying party, in writing, of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by give prompt written notice to indemnified the party including against which indemnification is sought (the employment “Indemnitor”) of counsel or accountantsany claims against the Indemnitee as to which a claim for indemnification is to be made hereunder, at its cost and expensewhich notice shall specify the nature of such claim; provided, however, if that the defendants in any failure to provide such action include both prompt written notice shall not affect the indemnifying party and indemnification obligations hereunder, except to the indemnified party and extent that the Indemnitor is harmed by such parties failure or delay. The Indemnitor shall have reasonable concluded that there may be a conflict between the positions of such parties right to participate, at its own expense, in conducting the defense of any such actionclaim or its settlement, and the indemnified party Indemnitee shall have permit the right Indemnitor to select separate legal counsel to assume such take over the investigation, defense and otherwise participate in such action at the indemnifying party’s expense. The indemnified party shall have the right to employ counsel separate from counsel employed by the indemnifying party in settlement of any such action and claim with counsel reasonably satisfactory to participate thereinthe Indemnitee, but provided that the Indemnitor bears the fees and expenses of such counsel employed counsel. Notwithstanding the preceding sentence, (i) the Indemnitor shall not settle any action without the consent of the Indemnitee unless the settlement has no monetary consequences to the Indemnitee and the terms of the settlement have no material impact on the conduct of the Indemnitee’s or its affiliates’ conduct of their business, and (ii) if the Indemnitee reasonably believes that it has defenses which conflict with or are in addition to those which may be asserted by the indemnified party Indemnitor, the Indemnitee may, at the expense of the Indemnitor, retain separate counsel. Notwithstanding the foregoing, no Indemnitor shall be at its expense. The indemnifying party shall not be liable for obligated to indemnify any settlement Indemnitee unless written notice of any the claim with respect to which indemnification is sought was provided to such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim Indemnitor as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithfirst sentence of this paragraph within the two-year period following the Closing Date.
Appears in 1 contract
Procedures for Indemnification. An indemnified party hereunder shall notify the indemnifying party, in writing, of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount or 24.3.1 If an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution indemnitee becomes aware of a third-party claim as provided above within thirty Claim that (30if successful) Days after notice thereof from the will result in a Loss to be indemnified partyunder this Section, the indemnitee will promptly notify the indemnitor in writing (with a copy of the notice to the indemnitor's legal counsel). Failure or delay in giving such notice will not affect the right to be indemnified except to the extent that it prejudices the defense of the Claim. If the indemnitor acknowledges that the Claim (if successful) will result in Loss within its obligation to indemnify under this Section, it may assume the defense within fifteen (15) days after receiving the notice of the Claim. In the meantime, the indemnitee may take any action that it deems appropriate to protect its interests or those of the indemnitor, provided it is not prejudicial to the indemnitor.
24.3.2 If the indemnitor acknowledges its obligation to indemnify and assumes the defense, it will have both the duty to defend and the right to control the defense. The indemnitor will conduct the defense in a prudent manner and will keep the indemnitee reasonably informed as to the status of the defense. The indemnitee will cooperate with the defense and may retain separate counsel at its own expense to participate in, but not control, the defense. Neither party may settle such claim a Claim without the indemnifying party’s consentconsent of the other, and that consent may not be unreasonably withheld or delayed.
24.3.3 If the indemnitor does not timely assume the defense, the indemnitee will have the right (but no duty) to defend or settle the Claim at the risk of the indemnitor. The indemnifying party shall not agree to a settlement indemnitor will reimburse the indemnitee for its expenses (including reasonable attorney's fees) of any Claims and Losses which provides for any relief other than defending or settling the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithClaim.
Appears in 1 contract
Sources: Health Outcomes Research Agreement (Net Savings Link, Inc./De)
Procedures for Indemnification. An a. Each indemnified party shall promptly give notice hereunder shall notify to the indemnifying party, in writing, party after becoming aware of any claim for indemnification, specifying in reasonable detail as to which recovery may be sought against the nature indemnifying party because of the Claims and Losses indemnity in this Article IX, and, if known, such indemnity shall arise from the amount or an estimate of the amount of the Claims and Losses. In the event claim of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, shall permit the indemnifying party may to assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such actionclaim and any litigation or other proceeding resulting from such claim; provided, that any indemnified party may, in any event, at its own expense, monitor and participate in, but not control, the defense of any such claim or litigation. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an indemnified party to give such notice (or by delay by an indemnified party in giving such notice) unless, and then only to the extent that, the rights and remedies of the indemnifying party shall have been prejudiced as a result of the right failure to select separate legal counsel give, or delay in giving, such notice. The notice required hereunder shall specify the basis for the claim for indemnification to assume such defense and otherwise participate in such action the extent ascertainable at the time of the notice. Failure by the indemnifying party’s expense. The Party to notify an indemnified party of its election to defend any such claim or action by a third party within 30 days after notice thereof shall have been given to the right to employ counsel separate from counsel employed indemnifying party shall be deemed a waiver by the indemnifying party in any of its right to defend such action and to participate therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. claim or action.
b. The indemnifying party shall not be liable for not, in the defense of such claim or any settlement litigation resulting therefrom, consent to entry of any such Claims and Losses effected judgment (other than a judgment of dismissal on the merits without its prior costs) or enter into any settlement, except with the written consentconsent of the indemnified party, which consent shall not be unreasonably withheld; provided that if , conditioned or delayed, which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the indemnified party a release from all liability in respect of such claim or litigation.
c. If the indemnifying party does shall not assume the defense of any such claim by a third party, or prosecution litigation resulting therefrom, after receipt of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle defend against such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute litigation in such claim, both parties 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, manner as may be reasonably requested in connection therewithit deems appropriate.
Appears in 1 contract
Procedures for Indemnification. An indemnified The party hereunder making a claim under this Article 11 is referred to as the "Indemnitee" and the party against whom such claims are asserted under this Article 11 is referred as the "Indemnitor." All claims by an Indemnitee under this Article 11 shall notify be asserted and resolved as follows:
(a) In the indemnifying party, in writing, of event that any claim or demand by a third party for indemnificationwhich an Indemnitor would be liable to an Indemnitee hereunder is asserted against or sought to be collected from such Indemnitee, the Indemnitee shall with reasonable promptness (but in no event later than five (5) Business Days after the Indemnitee knew or should have known about the existence of such claim) notify in writing the Indemnitor of such claim or demand, specifying in reasonable detail the nature of the Claims specific basis for such claim or demand, and Losses and, if known, the amount or an the estimated amount thereof to the extent then feasible which estimate shall not be conclusive of the final amount of such claim and demand (the Claims "Claim Notice"). To the extent a claim will be made under the Indemnification Agreement among Purchaser, Edward Ateyeh, Jr., Wade Saadi and LossesEdgar Saadi, notice shall also be g▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ w▇▇▇ ▇▇▇▇ ▇ndemn▇▇▇▇▇▇▇▇▇ ▇greement. Notwithstanding anything herein to the contrary, failure of the Indemnitee to give the Indemnitor notice as provided herein shall not relieve the Indemnitor of the obligation hereunder except to the extent that the Indemnitor is prejudiced thereby. The Indemnitor shall within ten (10) days of receipt of a Claim Notice notify the Indemnitee whether it will defend such third party claim or demand on behalf of the Indemnitee. In the event of a the Indemnitor elects to defend such claim by any third party, or if there is any claim against a third party available by virtue demand on behalf of the circumstances Indemnitee, it shall retain counsel (who shall be reasonably acceptable to the Indemnitee) to represent the Indemnitee and shall pay the reasonable fees and disbursements of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of such counsel or accountants, at its cost and expensewith regard thereto; provided, however, if that any Indemnitee is hereby authorized prior to the defendants in date on which it receives written notice from the Indemnitor designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnitor, to file any motion, answer or other pleading and take such other action include both which it reasonably shall deem necessary to protect its interests or those of the indemnifying party and Indemnitor until the indemnified party and date on which the Indemnitee received such parties shall have reasonable concluded that there may be a conflict between notice from the positions of Indemnitor. In the event the Indemnitor elects to defend such parties in conducting the defense of any such actionclaim or demand, the indemnified party Indemnitee shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 thereinretain its own counsel, but the fees and expenses of such counsel employed by the indemnified party shall be at its expensethe expense of such Indemnitee unless (x) the Indemnitor and the Indemnitee shall have mutually agreed in writing to the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnitor and the Indemnitee and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The indemnifying Indemnitor shall not, in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnitee (except to the extent the Indemnitee retained counsel to protect its (or the Indemnitor's) right prior to the selection of counsel by the Indemnitor as set forth above). If requested by the Indemnitor, the Indemnitee agrees to cooperate with the Indemnitor and its counsel in contesting any claim or demand which the Indemnitor defends. A claim or demand may not be settled by the Indemnitor without the prior written consent of the Indemnitee unless the settlement is for cash and as part of such settlement the Indemnitee shall receive a full and unconditional release reasonably satisfactory to the Indemnitee. If the Indemnitor does not elect to defend such third party claim or demand or does not defend such third party claim or demand in good faith, the Indemnitee shall have the right, in addition to any other right or remedy it may have hereunder, at the Indemnitor's reasonable expense, to defend such third party claim or demand; provided, however, that (a) the Indemnitor shall not have any obligation to participate in the defense of, or defend, any such third party claim or demand; and (b) the Indemnitor's defense of, or its participation in the defense of any such third party claim or demand, shall not in any way diminish or lessen the obligations of the Indemnitor under the agreements of indemnification set forth in this Article 11.
(b) In the event any Indemnitee shall have a claim against any Indemnitor hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnitee shall send a written Claim Notice with respect to such claim to the Indemnitor. If the Indemnitor does not notify the Indemnitee within twenty (20) Business Days of receipt of such Claim Notice that it disputes such claim, the amount of such claims shall be conclusively deemed a liability of the Indemnitor hereunder.
(c) So long as any right to indemnification exists pursuant to this Article 11, the affected parties each agree to retain all books and records related to the Claim Notice. In each instance where the Indemnitor elects to defend a claim or demand on behalf of the Indemnitee, the Indemnitee shall have the right to be kept fully informed by the Indemnitor and its legal counsel with respect to any legal proceedings. Any information or documents made available to any party hereunder and designated as confidential by the party providing such information or documents and which is not otherwise generally available to the public and not already within the knowledge of the party to whom the information is provided (unless otherwise covered by the confidentiality provisions of any other agreement among the parties hereto, or any of them), and except as may be required by applicable law, shall not be liable disclosed to any third party (except for any settlement the representatives of the party being provided with the information, in which event the party being provided with the information shall request its representatives not to disclose any such Claims and Losses effected without its prior written consent, information which shall not is otherwise required hereunder to be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithkept confidential.)
Appears in 1 contract
Procedures for Indemnification. An indemnified party hereunder If an event occurs that entitles a Parent Indemnified Party, or that a Parent Indemnified Party reasonably believes entitles it, to indemnification pursuant to this Article VII, the Parent Indemnified Party shall promptly notify the indemnifying partySecurityholder Representative; provided, that that no delay on the part of the Parent Indemnified Party in writing, notifying the Securityholder Representative shall relieve an Indemnifying Person of any claim for indemnificationliability or obligation hereunder, specifying in reasonable detail except to the nature extent that such Indemnifying Person has been materially prejudiced by such Parent Indemnified Party’s failure to give such notice. The Parent Indemnified Party shall have the right to undertake, conduct, control and settle the defense of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a such third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expenseclaim; provided, however, if that the defendants in any such action include both Parent Indemnified Party may not affect the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected claim without its prior written consentthe consent of the Securityholder Representative, which consent shall not be unreasonably withheldwithheld or delayed. The Securityholder Representative shall cooperate with the Parent Indemnified Party and its counsel in the defense of such claim and shall be entitled to participate in the defense thereof at its own cost and expense. The Securityholder Representative may acknowledge and agree by written notice to the Parent Indemnified Party to satisfy such claim within 20 days of receipt of notice of such claim from such Parent Indemnified Party; provided provided, however, that if the indemnifying party does not assume claim is such that a response is required in less than 20 days, such time period shall be reduced to the defense or prosecution of a third-party response period applicable to the claim as provided above within thirty (30) Days after notice thereof from less three days, but in no event shall the indemnified party, time period be less than ten days. In the indemnified party may settle such claim without event that the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute Securityholder Representative disputes such claim, both parties the Securityholder Representative shall cooperate provide written notice of such dispute to the Parent Indemnified Party within 20 days of receipt of notice of such claim, setting forth the basis of such dispute. In the event that the Securityholder Representative fails to provide written notice to the Parent Indemnified Party within the required number of days of receipt of notice from the Parent Indemnified Party that the Securityholder Representative either acknowledges and agrees to pay such Loss or dispute such Loss, the Indemnifying Persons shall be deemed to have acknowledged and agreed to pay such Loss in the defense or prosecution thereof full and shall furnish to have waived any right to dispute such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewithLoss.
Appears in 1 contract
Procedures for Indemnification. An indemnified Promptly after receipt by a party entitled to indemnification hereunder shall notify (the indemnifying party, in writing, “Indemnitee”) of written notice of the assertion or the commencement of any claim for indemnificationProceeding by a third-party with respect to any matter referred to in Sections 9.2 or 9.3, specifying in reasonable detail the nature Indemnitee shall give written notice thereof to the party obligated to indemnify Indemnitee (the “Indemnitor”) (and the Escrow Agent under the Purchase Price Escrow Agreement if the Buyer is the indemnitee), which notice shall include a description of the Claims and Losses and, if knownProceeding, the amount or an estimate thereof (if known and quantifiable) and the basis for the Proceeding, and thereafter shall keep the Indemnitor reasonably informed with respect thereto; provided, that failure of the amount Indemnitee to give the Indemnitor (and the Escrow Agent under the Purchase Price Escrow Agreement if the Buyer is the Indemnitee) notice as provided herein shall not relieve the Indemnitor of its obligations hereunder except to the Claims extent that the Indemnitor is prejudiced thereby. A claim for indemnification for any matter not involving a third-party Proceeding may be asserted by notice to the party from whom indemnification is sought (and Lossesthe Escrow Agent if the claims are made by Buyer) and shall be paid promptly after such notice pursuant to the terms of this Article 9 (and the Purchase Price Escrow Agreement if such claims are made by Buyer). In Any Indemnitor shall be entitled to participate in the event defense of a such action, lawsuit, proceeding, investigation or other claim by any third partygiving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, or if there is any claim against a third party available by virtue of and at its option (subject to the circumstances of the Claims and Losses, the indemnifying party may limitations set forth below) shall be entitled to assume the defense or the prosecution thereof by prompt written notice appointing reputable counsel to indemnified party including be the employment of lead counsel or accountants, at its cost and expensein connection with such defense; provided, however, if provided that:
(a) the defendants Indemnitee shall be entitled to participate in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense claim and otherwise participate in such action at the indemnifying party’s expense. The indemnified party shall have the right to employ counsel separate from counsel employed by the indemnifying party in any of its choice for such action and to participate therein, but purpose; provided that the fees and expenses of such separate counsel employed shall be borne by the indemnified party Indemnitee (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnitor effectively assumes control of such defense which, notwithstanding the foregoing, shall be at its expense. The indemnifying party borne by the Indemnitor, and except that the Indemnitor shall pay all of the fees and expenses of such separate counsel if the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee);
(b) the Indemnitor shall not be liable 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 (1) the claim for indemnification relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation; and (2) the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee. Further, the Indemnitor shall not be entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnitee) but Indemnitee shall pay the fees and expenses of counsel retained by the Indemnitee if (1) the Indemnitee reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would be detrimental to or materially injure the Indemnitee’s reputation or future business prospects; or (2) the claim seeks an injunction or equitable relief against the Indemnitee; and
(c) if the Indemnitor shall control the defense of any such claim, the Indemnitor shall obtain the prior written consent of the Indemnitee before entering into any settlement of any a claim or ceasing to defend such Claims and Losses effected without its prior written consentclaim if, which shall not pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be unreasonably withheld; provided that imposed against the Indemnitee or if the indemnifying party such settlement does not assume expressly and unconditionally release the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof Indemnitee from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree all liabilities and obligations with respect to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithwithout prejudice.
Appears in 1 contract
Procedures for Indemnification. An Promptly after receipt by an indemnified party pursuant to the provisions of Sections (b) or (c) of this Section 15 of notice of a Claim, such indemnified party shall promptly notify such 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 to the indemnified party otherwise than hereunder shall notify unless the indemnified party is materially prejudiced thereby. In case such action is brought against an indemnified party and it notifies the indemnifying party, in writing, of any claim for indemnification, specifying in reasonable detail the nature party of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Lossescommencement thereof, the indemnifying party shall have the right to participate in, and, to the extent that it may wish, to assume the defense or the prosecution thereof by prompt written notice thereof, with counsel reasonably satisfactory to such indemnified party including the employment of counsel or accountants, at its cost and expenseparty; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party and such parties shall have reasonable reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party, or if there is a conflict between of interest which would prevent counsel for the positions of such parties in conducting indemnifying party from also representing the defense of any such actionindemnified party, the EXHIBIT 2.1 indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in the defense of such action at the indemnifying on behalf of such indemnified party’s expense. The indemnified party shall have the right to employ counsel separate After notice from counsel employed by the indemnifying party in any to such action and to participate therein, but the fees and expenses of such counsel employed by the indemnified party shall be at of its expense. The election so to assume the defense thereof, the indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, to the indemnified party may settle pursuant to the provisions of such claim without Sections 15(b) or (c) for any legal or other expense subsequently incurred by such indemnified party in connection with the indemnifying party’s consent. 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 agree have employed counsel reasonably satisfactory to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without to represent the indemnified party’s prior written consent. Whether party within a reasonable time after the notice of the commencement of the action, or not (3) the indemnifying party chooses to so defend or prosecute such claimhas authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party, both parties shall cooperate in the defense of any such claim or prosecution litigation, shall, except with the consent of each indemnified party (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 and shall furnish the release from all liability in respect to such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewithclaim or litigation.
Appears in 1 contract
Procedures for Indemnification. An indemnified (a) No Seller Indemnifying Party shall be liable for any claim for indemnification under this Article VIII unless written notice of a claim for indemnification is delivered by the Purchaser Indemnified Party seeking indemnification to the Seller Indemnifying Party from whom indemnification is sought prior to the expiration of any applicable survival period set forth in Section 8.01 (in which event the claim shall survive until finally and fully resolved). If any third party hereunder notifies the Purchaser Indemnified Party with respect to any matter which may give rise to a claim for indemnification (a “Third Party Claim”) against the Seller Indemnifying Party under this Article VIII, then the Purchaser Indemnified Party shall notify the indemnifying party, Seller Indemnifying Party reasonably promptly thereof in writing; provided, that no delay on the part of the Purchaser Indemnified Party in notifying the Seller Indemnifying Party shall relieve the Seller Indemnifying Party from any claim for indemnification, specifying in obligation hereunder except to the extent that the Seller Indemnifying Party is actually and materially prejudiced thereby. All notices given pursuant to this Section 8.05(a) shall describe with reasonable detail specificity the nature of the Claims and Losses andclaim, if known, the amount or an estimate of the amount of the Claims claim (to the extent then known) and Losses. In the event basis of the Purchaser Indemnified Party’s claim for indemnification.
(b) Following receipt of notice in accordance with Section 8.05(a) (other than a notice of a Third Party Claim against the Purchaser Indemnified Party, in which case Section 8.05(c) below shall apply), the Seller Indemnifying Party shall have thirty (30) days from the date it receives such notice (the “Dispute Period”) to make such investigation of the claim as the Seller Indemnifying Party deems necessary or desirable. For purposes of such investigation, the Purchaser Indemnified Party shall make available to the Seller Indemnifying Party all the material information related to such claim relied upon by or in possession or control of, the Purchaser Indemnified Party; provided, that such Purchaser Indemnified Party shall not be required to violate any third partyGovernmental Order or any applicable Law to which it is subject or to waive any attorney-client privilege or work product doctrine which any of them may possess or that may otherwise apply to such information. If the Seller Indemnifying Party disagrees with the validity or amount of all or a portion of such claim made by the Purchaser Indemnified Party, the Seller Indemnifying Party shall deliver to the Purchaser Indemnified Party written notice thereof (the “Dispute Notice”) prior to the expiration of the Dispute Period. If no Dispute Notice is received by the Purchaser Indemnified Party within the Dispute Period or the Seller Indemnifying Party provides notice that it does not have a dispute with respect to such claim, such claim shall be deemed approved and consented to by the Seller Indemnifying Party (such claim, an “Approved Indemnification Claim”). If a Dispute Notice is received by the Purchaser Indemnified Party within the Dispute Period and the Purchaser Indemnified Party and the Seller Indemnifying Party do not agree to the validity and/or amount of such disputed claim, no payment shall be made until such disputed claim is resolved, whether by adjudication of such matter, agreement between the Purchaser Indemnified Party and the Seller Indemnifying Party, or if there is otherwise (and upon any such resolution, such claim against shall be deemed to be an Approved Indemnification Claim). Each Approved Indemnification Claim shall be paid by Sellers or Parent and Purchaser, as applicable, no later than five (5) Business Days after the date on which the subject claim became an Approved Indemnification Claim, in each case by wire transfer of immediately available funds to the account designated in writing by the party entitled to such payment.
(c) After the Purchaser Indemnified Party has given notice of a third party available by virtue of Third Party Claim to the circumstances of the Claims and LossesSeller Indemnifying Party pursuant to Section 8.05(a), the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountantsSeller Indemnifying Party may, at its cost election, undertake and conduct the defense of such Third Party Claim at its own expense; provided, howeverthat the Seller Indemnifying Party fully acknowledges in writing its indemnification obligations to the Purchaser Indemnified Party. In such case, if the defendants Purchaser Indemnified Party may continue to participate in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions defense of such parties in conducting Third Party Claim. If the Seller Indemnifying Party assumes the defense of any Third Party Claim, and unless (i) such actionsettlement or consent to judgment does not impose or purport to impose any obligation or restriction on such Purchaser Indemnified Party or any of its Affiliates or any action or restrictions upon the conduct of the businesses of the Purchaser Indemnified Party or any of its Affiliates, (ii) the Purchaser Indemnified Party receives a full release of and from any other claims that may be made against the Purchaser Indemnified Party in connection with such Third Party Claim, (iii) the sole relief provided is monetary damages that are paid in full by the Seller Indemnifying Party, and (iv) there is no finding or admission of any violation by the Purchaser Indemnified Party of any applicable Law or any rights of any Person, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party Seller Indemnifying Party shall not be liable for any settlement settle or consent to judgment with respect to such Third Party Claim without the written consent of any such Claims and Losses effected without its prior written consentthe Purchaser Indemnified Party, which consent shall not be unreasonably withheld; provided that if , conditioned or delayed. Notwithstanding anything to the indemnifying party does contrary, the Seller Indemnifying Party shall not be entitled to assume the administration and defense of any Third Party Claim if: (i) the Seller Indemnifying Party has failed to assume the defense or prosecution of a third-party claim as provided above such Third Party Claim within thirty (30) Days after days of the Purchaser Indemnified Party’s delivery of notice of such Third Party Claim to the Seller Indemnifying Party, (ii) the aggregate amount reasonably expected to be incurred in connection with such Third Party Claim and all other outstanding claims on the RWI Indemnity Escrow Funds exceeds 150% of the remaining amount of the RWI Indemnity Escrow Funds, (iii) such Third Party Claim involves criminal or quasi-criminal allegations, (iv) the Third Party Claim includes a claim for injunctive relief, or (v) any Seller is the Seller Indemnifying Party and (A) Purchaser or the Insurer is required to assume the defense of the Third Party Claim pursuant to the terms thereof from or (B) any Seller’s assumption of the indemnified party, defense of the indemnified party may settle such claim without Third Party Claim would reasonably be expected to cause a Purchaser Indemnified Party to lose coverage under the indemnifying party’s consentR&W Insurance Policy. The indemnifying party Purchaser Indemnified Party and the Seller Indemnifying Party shall not agree render to a settlement each other such assistance as may reasonably be required of each other in order to ensure proper and adequate defense of any Claims and Losses which provides for any relief other than Third Party Claim subject to this Section 8.05. To the payment of monetary damages extent that the Purchaser Indemnified Party or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or Seller Indemnifying Party does not the indemnifying party chooses to so defend or prosecute such claim, both parties shall cooperate participate in the defense of a particular Third Party Claim, the Person so proceeding with such Third Party Claim shall keep the other Person informed of all material developments and events relating to such Third Party Claim. No Purchaser Indemnified Party shall settle or prosecution thereof and consent to judgment with respect to any Third Party Claim for which the Seller Indemnifying Party has provided a written acknowledgement of its indemnification obligations to the Purchaser Indemnified Party without the written consent of the Seller Indemnifying Party, which consent shall furnish such recordsnot be unreasonably withheld, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewithconditioned or delayed.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Local Bounti Corporation/De)
Procedures for Indemnification. An In case any action, proceeding or claim is brought against an indemnified party hereunder in respect of which indemnification is sought hereunder, Licensor shall notify be entitled to participate and, unless in the indemnifying reasonable judgment of legal counsel to the indemnified party a conflict of interest between it and Licensor may exist with respect of such action, proceeding or claim, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. In the event that Licensor fails, within thirty (30) days of receipt of any indemnification notice, to notify, in writing, such person of Licensor’s election to defend, settle or compromise, at its sole cost and expense, any action, proceeding or claim for indemnification(or discontinues its defense at any time after it commences such defense), specifying in reasonable detail then the nature of the Claims and Losses andindemnified party may, if knownat its option, the amount defend, settle or an estimate of the amount of the Claims and Lossesotherwise compromise or pay such action or claim. In the event of a claim by any third partyevent, or if there is any claim against a third party available by virtue of the circumstances of the Claims unless and Losses, the indemnifying party may until Licensor elects in writing to assume and does so assume the defense of any such claims, proceeding or action, the prosecution thereof by prompt written notice indemnified party’s costs and expenses arising out of the defense, settlement or compromise of any such action, claim or proceeding shall be losses subject to indemnification hereunder. The indemnified party including the employment of counsel shall cooperate fully with Licensor in connection with any negotiation or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, claim or proceeding by Licensor and shall furnish to Licensor all information reasonably available to the indemnified party which relates to such action, claim or proceeding. Licensor shall have keep the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. The indemnified party shall have fully apprised at all times as to the right status of the defense or any settlement negotiations with respect thereto. If Licensor elects to employ counsel separate from counsel employed by the indemnifying party in defend any such action and to participate thereinor claim, but the fees and expenses of such counsel employed by then the indemnified party shall be entitled to participate in such defense using counsel of its choice at its sole cost and expense. The indemnifying party Licensor shall not be liable for any settlement of any such Claims and Losses action, claim or proceeding effected without its prior written consent. Notwithstanding anything in this Section 7 to the contrary, which Licensor shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified partynot, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether , settle or compromise any claim or consent to entry of any judgment in respect thereof which imposes any future obligation on the indemnified party or which does not include, as an unconditional term thereof, the indemnifying giving by the claimant or the plaintiff to the indemnified party chooses to so defend or prosecute of a release from all liability in respect of such claim, both parties 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.
Appears in 1 contract
Sources: Sublicense Agreement (Liquidmetal Technologies Inc)
Procedures for Indemnification. An indemnified Promptly after receipt by a party entitled to indemnification hereunder shall notify (the indemnifying party, in writing, “Indemnitee”) of written notice of the assertion or the commencement of any claim for indemnificationProceeding by a third-party with respect to any matter referred to in Sections 11.2 or 11.3, specifying in reasonable detail the nature Indemnitee shall give written notice thereof to the party obligated to indemnify Indemnitee (the “Indemnitor”), which notice shall include a description of the Claims and Losses and, if knownProceeding, the amount or an estimate thereof (if known and quantifiable) and the basis for the Proceeding, and thereafter shall keep the Indemnitor reasonably informed with respect thereto; provided, that failure of the amount Indemnitee to give the Indemnitor notice as provided herein shall not relieve the Indemnitor of its obligations hereunder except to the Claims extent that the Indemnitor is prejudiced thereby. A claim for indemnification for any matter not involving a third-party Proceeding may be asserted by notice to the party from whom indemnification is sought and Lossesshall be paid promptly after such notice. In Any Indemnitor shall be entitled to participate in the event defense of a such action, lawsuit, proceeding, investigation or other claim by any third partygiving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, or if there is any claim against a third party available by virtue of and at its option (subject to the circumstances of the Claims and Losses, the indemnifying party may limitations set forth below) shall be entitled to assume the defense or the prosecution thereof by prompt written notice appointing a nationally recognized and reputable counsel reasonably acceptable to indemnified party including the employment of Indemnitee to be the lead counsel or accountants, at its cost and expensein connection with such defense; provided, however, if provided that:
(i) the defendants Indemnitee shall be entitled to participate in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense claim and otherwise participate in such action at the indemnifying party’s expense. The indemnified party shall have the right to employ counsel separate from counsel employed by the indemnifying party in any of its choice for such action and to participate therein, but purpose; provided that the fees and expenses of such separate counsel employed shall be borne by the indemnified party Indemnitee (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnitor effectively assumes control of such defense which, notwithstanding the foregoing, shall be at its expense. The indemnifying party borne by the Indemnitor, and except that the Indemnitor shall not be liable for any settlement pay all of any the fees and expenses of such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that separate counsel if the indemnifying party does not assume the defense or prosecution Indemnitee has been advised by counsel that a reasonable likelihood exists of a third-party claim as provided above within thirty (30) Days after notice thereof from conflict of interest between the indemnified party, Indemnitor and the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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.Indemnitee);
Appears in 1 contract
Procedures for Indemnification. An (a) If an indemnified party asserts that it is entitled to indemnification under this ARTICLE XI or in the event that any suit, action, investigation, proceeding, complaint or litigation is commenced by a third party involving a claim for which an indemnifying party may be liable to an indemnified party hereunder (an “Asserted Liability”), the indemnified party shall promptly notify the indemnifying party, party in writing, writing of any claim for indemnification, specifying in reasonable detail such Asserted Liability (the nature of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense“Claim Notice”); provided, however, that no delay on the part of an indemnified party in giving any such Claim Notice shall relieve the indemnifying party of any indemnification obligation hereunder except to the extent that the indemnifying party is materially prejudiced by such delay. The indemnifying party shall have thirty (30) days (or less if the defendants nature of the Asserted Liability so requires) from receipt of the Claim Notice (the “Notice Period”) to notify the indemnified party whether or not the indemnifying party desires, at the indemnifying party’s sole cost and expense and by counsel of its choosing, which shall be reasonably satisfactory to the indemnified party, to defend against such Asserted Liability; provided that if, under applicable standards of professional conduct a conflict on any significant issue between any indemnifying party and any indemnified party exists in respect of such Asserted Liability, then the indemnifying party shall promptly reimburse the indemnified party for the reasonable fees and expenses of counsel to be retained in order to resolve such conflict upon presentation by the indemnified party of invoices or other documentation evidencing such amounts to be reimbursed. If the indemnifying party undertakes to defend against such Asserted Liability, (i) the indemnifying party shall use its commercially reasonable efforts to defend and protect the interests of the indemnified party with respect to such Asserted Liability, (ii) the indemnified party, prior to the period in which the indemnifying party assumes the defense of such matter, may take such reasonable actions as the indemnified party deems necessary to preserve any and all rights with respect to such matter without such actions being construed as a waiver of the indemnified party’s rights to defense and indemnification pursuant to this Agreement and (iii) without the consent of the indemnified party (such consent not to be unreasonably withheld), the indemnifying party shall not agree to any compromise or settlement which (A) does not contain a release of the indemnified party with respect to the subject matter of the compromise or settlement that is the same in all material respects as the release given to the indemnifying party, (B) requires the payment of monetary damages by the indemnified party, or (C) imposes any non-monetary liabilities or obligations on the indemnified party that affects in any material respect the operation of the business of the indemnified party. If the indemnifying party undertakes to defend against such action include both Asserted Liability, the indemnified party shall, and shall cause its Affiliates to, cooperate with the indemnifying party and its counsel in the investigation, defense and settlement thereof. If the indemnified party desires to participate in any such defense it may do so at its sole cost and such parties shall have reasonable concluded that there may be expense, except in circumstances in which counsel is retained to resolve a conflict between under applicable rules of professional conduct in which case the positions indemnifying party shall be responsible for payment of such parties in conducting the defense fees and expenses of any such action, counsel to the indemnified party. If the indemnifying party does not undertake to defend against an Asserted Liability within the Notice Period, then the indemnifying party shall have the right to select separate legal counsel to assume participate in any such defense at its sole cost and otherwise participate expense, but, in such action at case, the indemnifying party’s expense. The indemnified party shall have control the right to employ counsel separate from counsel employed by investigation and defense and may settle or take any other actions the indemnifying indemnified party in any such action deems advisable and to participate therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party entitled to recover the entire cost thereof including, without limitation, reasonable attorneys’ fees, disbursements and amounts paid as the result of the Asserted Liability; provided, however, that such claim shall not be liable for any settlement compromised or settled without the written consent of any such Claims and Losses effected without its prior written consentthe indemnifying party, which consent shall not be unreasonably withheld; provided that if , conditioned or delayed. The indemnified party and the indemnifying party does not assume agree to make available to each other, their counsel and other representatives, all information and documents available to them which relate to a claim or demand and to render to each other such assistance and cooperation as may reasonably be required to ensure the proper and adequate defense or prosecution of a third-party claim as provided above within or demand.
(b) No later than thirty (30) Days days after notice thereof from a final judgment or award shall have been rendered by a court, arbitration board 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 indemnified party and the indemnifying party shall have arrived at a mutually binding agreement with respect to a claim hereunder, the indemnifying party shall pay the amounts, if any, due and owing by the indemnifying party to the indemnified party by wire transfer of immediately available funds to an account designated in writing by the indemnified party.
(c) The parties hereto agree to treat any indemnity payments made hereunder as an adjustment to the Merger Consideration for federal, state, local and foreign income Tax purposes to the extent permitted by Law.
(d) The parties hereto agree if an amount with respect to which any indemnity claim is made under this ARTICLE XI gives rise to a Tax Benefit to the party making the claim, the indemnified party may settle such claim without indemnity payment shall be reduced by the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition amount of the indemnified party without the indemnified Tax Benefit realized by such party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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.
Appears in 1 contract
Sources: Merger Agreement (Medical Staffing Network Holdings Inc)
Procedures for Indemnification. An indemnified (a) If a party hereunder shall notify entitled to indemnification under this Section 10 (an “Indemnitee”) asserts that a party obligated to indemnify it under this Section 10 (an “Indemnitor”) has become obligated to such Indemnitee pursuant to Section 10.2 or 10.3, as the indemnifying party, in writing, of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third partycase may be, or if there any suit, action, investigation, claim or proceeding is any claim against begun, made or instituted as a third party available by virtue result of which the circumstances of the Claims and LossesIndemnitor may become obligated to an Indemnitee hereunder, the indemnifying party may assume the defense or the prosecution thereof by such Indemnitee shall give prompt written notice thereof to indemnified party including the employment of counsel or accountants, at its cost and expenseIndemnitor; provided, however, if that no delay in delivering such written notice to the defendants in Indemnitor shall relieve the Indemnitor from any such action include both obligation hereunder, unless, and then solely to the indemnifying party and extent that, the indemnified party and such parties Indemnitor is actually prejudiced thereby.
(b) The Indemnitor shall have reasonable concluded the right, at its sole cost and expense, to participate in, and, to the extent that there it may wish, assume the defense of, any suit, action, investigation, claim or proceeding asserted by any third party against an Indemnitee that may result in the incurrence by such Indemnitee of Losses for which such Indemnitee would be a conflict between entitled to indemnification pursuant to this Section 10; provided, however, that the positions of such parties in conducting Indemnitor shall not be entitled to assume the defense of any such suit, action, investigation, claim or proceeding, if (a) the indemnified party Indemnitee reasonably determines that the amount of the Losses in respect of such suit, action, investigation, claim or proceeding, if successful, would be likely to exceed the Indemnitor’s liability under this Agreement or (b) such suit, action, investigation, claim or proceeding involves an allegation of the violation of Applicable Law (including fiduciary and regulatory requirements thereunder) or seeks any non-monetary remedy. The Indemnitee shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of the Indemnitee’s choice (except that the Indemnitor shall be responsible for the fees and expenses of one separate co-counsel for all Indemnitees to the extent the Indemnitee is advised, in writing by its counsel, that either (i) the counsel the Indemnitor has selected has a conflict of interest or (ii) there are legal defenses available to the Indemnitee that may be materially different from or additional to those available to the Indemnitor) and the Indemnitee shall in any event cooperate with and assist the Indemnitor to the extent reasonably possible. If the Indemnitor does not timely assume the defense of, contest or otherwise protect against such suit, action, investigation, claim or proceeding, the Indemnitee shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. The indemnified party shall have do so, including, without limitation, the right to employ counsel separate make any compromise or settlement thereof, and the Indemnitee shall be entitled to recover the entire cost thereof from counsel employed by the indemnifying party Indemnitor, including, without limitation, reasonable attorneys’ fees, disbursements and amounts paid as the result of such suit, action, investigation, claim or proceeding, in each case subject to the limitations set forth herein; provided that the Indemnitee shall not settle any such action and suit, action, investigation, claim or proceeding without the consent of the Indemnitor (such consent not to participate therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided , conditioned or delayed) and shall keep the Indemnitor reasonably apprised of the status of the applicable suit, action, investigation, claim or proceeding and any efforts to settle the same upon request of the Indemnitor.
(c) With respect to any suit, action, investigation, claim or proceeding that if the indemnifying party Indemnitor assumes the defense of in accordance with Section 10.4(b), the Indemnitor shall not consent to the entry of a judgment or enter into any settlement with respect thereto, unless (i) the judgment or settlement provides solely for the payment of monetary damages and does not impose injunctive or other equitable relief against the Indemnitee and (ii) the plaintiff or claimant in the matter releases the Indemnitee from all liability or wrongdoing with respect thereto, in each case of clauses (i) and (ii) above, without the written consent of the Indemnitee (not to be unreasonably withheld or delayed). For the avoidance of doubt, the Indemnitor shall not consent to the entry of a judgment or enter into any settlement with respect to any suit, action, investigation, claim or proceeding for which the Indemnitor does not assume the defense or prosecution in accordance with Section 10.4(b).
(d) In all cases in determining whether there has been a breach of a thirdrepresentation or warranty by the Buyer or any Seller for purposes of Section 10, or in determining the amount of any Losses with respect to a breach of a representation or warranty by the Buyer or any Seller for purposes of Section 10, such representations and warranties shall be read without regard to any materiality qualifier (including, without limitation, any reference to Material Adverse Effect or material adverse effect) contained therein; provided, however, that this Section 10.4(d) shall not apply to the representations or warranties contained in Section 5.7(a), Section 5.20, Section 5.21(a), Section 5.21(k), Section 5.24, Section 6.10 or Section 6.11.
(e) The indemnification provided for in Section 10 shall survive any investigation at any time made by or on behalf of the Indemnitee or any knowledge or information that the Indemnitee may have.
(f) All Losses recoverable by an Indemnitee shall be net of (i) insurance proceeds received by such Indemnitee or its Affiliates and (ii) any other amounts recovered and received by an Indemnitee or its Affiliates from a third party or the Fund, whether by way of payment, discount, credit, off-set, counterclaim, indemnification (including, without limitation, indemnification by the Fund), contribution or otherwise, net of any costs incurred to pursue such recovery; provided, however, that an Indemnitee shall have no obligation to seek recovery from insurance or any other indemnification, contribution or other payment. If any such insurance proceeds and/or other amounts are received by an Indemnitee or its Affiliates after the Indemnitor pays any amount pursuant to this Section 10, the Indemnitee shall promptly repay to the Indemnitor the amount such Indemnitor would not have had to pay pursuant to this Section 10 had such proceeds and/or other amounts been received by the Indemnitee or its Affiliates prior to such Indemnitor’s payment under this Section 10 to the Indemnitee.
(g) Each party claim acknowledges and agrees that, except as provided above within thirty in Section 7.5(d), Section 8.4(c) and Section 15.10 or in the case of fraud with scienter, its sole and exclusive remedy following the Closing with respect to any and all claims under or relating to this Agreement shall be pursuant to the indemnification provisions set forth in this Section 10.
(30h) Days after notice thereof No Indemnitee shall be entitled to double recovery for any indemnifiable Loss by reason of the state of facts giving rise to such Loss, even though such Loss may have resulted from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement breach of any Claims and Losses which provides for any relief other more than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition one of the indemnified party without the indemnified party’s prior written consent. Whether representations, warranties and covenants, or not the indemnifying party chooses to so defend or prosecute such claimany other indemnity, both parties 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 therewiththis Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (P10, Inc.)
Procedures for Indemnification. An Promptly after receipt by an indemnified party hereunder shall notify under Sections 12.2 and 12.3 of notice of the commencement of any action for which indemnification may be available under Section 12.2 or 12.3, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement thereof, but the failure so to notify that indemnifying party shall not relieve it of any liability that it may have to any indemnified party, in writing, except to the extent the indemnifying party demonstrates that the defense of such action is prejudiced thereby. In case any claim for indemnification, specifying in reasonable detail such action shall be brought against an indemnified party and it shall give notice to the nature indemnifying party of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Lossescommencement thereof, the indemnifying party may shall be entitled to participate therein and, to the extent that it shall elect, to assume the defense or the prosecution thereof by prompt written notice with counsel reasonably satisfactory to such indemnified party including the employment of counsel or accountantsand, at its cost and expense; provided, however, if the defendants in any such action include both after notice from the indemnifying party and the to such indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting its election so to assume the defense of any such actionthereof, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. 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 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 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) no compromise or settlement of any such Claims and Losses thereof may be effected by the indemnifying party without its prior written consent, the indemnified party's consent (which shall not be unreasonably withheld; ) unless (i) there is no finding or admission or any violation of law or any violation of the rights of any person and no effect on any other claims that may be made against the indemnified party and (ii) the sole relief provided is monetary damages that if are paid in full by the indemnifying party does not assume and (b) the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall have no liability with respect to any compromise or settlement thereof effected without its consent (which shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithunreasonably withheld).
Appears in 1 contract
Sources: Asset Purchase Agreement (Insight Health Services Corp)
Procedures for Indemnification. An indemnified party hereunder shall notify the indemnifying party, in writing, Promptly after an Indemnitee has knowledge of any claim for indemnification, specifying in reasonable detail the nature Claim as to which such Indemnitee reasonably believes indemnity may be sought or promptly after such Indemnitee receives notice of the Claims commencement of any action or proceeding (including any governmental action or proceeding) involving a Claim, such Indemnitee shall, if a Claim in respect thereof is to be made against the Company under this Section 8, deliver to the Company a written notice of such Claim, and Losses the Company shall have the right to participate in, and, if knownto the extent the Company so desires, the amount or an estimate to assume control of the amount of defense thereof with counsel mutually satisfactory to the Claims Company and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expenseIndemnitee; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party an Indemnitee shall have the right to select retain its own counsel if, in the reasonable opinion of counsel retained by the Company, the representation by such counsel of the Indemnitee and the Company would be inappropriate due to actual or potential differing interests between such Indemnitee and the Company; provided, further, that the Company shall not be responsible for the reasonable fees and expense of more than one (1) separate legal counsel to assume for such defense and otherwise participate in such action at the indemnifying party’s expenseIndemnitee. The indemnified party Indemnitee shall have cooperate fully with the right to employ counsel separate from counsel employed by the indemnifying party Company in connection with any negotiation or defense of any such action and to participate therein, but the fees and expenses of such counsel employed or Claim by the indemnified party Company and shall be at its expensefurnish to the Company all information reasonably available to the Indemnitee which relates to such action or Claim. The indemnifying party Company shall keep the Indemnitee fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. The Company shall not be liable for any settlement of any such Claims and Losses Claim effected without its prior written consent; provided, which however, that the Company shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense withhold, delay or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s condition its consent. The indemnifying party Company shall not, without the prior written consent of the Indemnitee, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnitee of a full release from all liability in respect to such Claim, action and proceeding. The failure to deliver written notice to the Company as provided in this Agreement shall not agree to a settlement relieve the Company of any Claims and Losses which provides for any relief other than liability to the payment of monetary damages or which could have a material precedential impact or effect on Indemnitee under this Section 8, except to the business or financial condition of extent that the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses Company is materially prejudiced in its ability to so defend or prosecute such claim, both parties 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 therewithaction.
Appears in 1 contract
Sources: Securities Purchase Agreement (Monogram Biosciences, Inc.)
Procedures for Indemnification. An indemnified Promptly after receipt by a party entitled to indemnification hereunder shall notify (the indemnifying party, in writing, "Indemnitee") of written notice of the assertion or the commencement of any claim for indemnificationProceeding by a third-party with respect to any matter referred to in Sections 10.2, specifying in reasonable detail the nature Indemnitee shall give written notice thereof to the party obligated to indemnify Indemnitee (the "Indemnitor"), which notice shall include a description of the Claims and Losses and, if knownProceeding, the amount or an estimate thereof (if known and quantifiable) and the basis for the Proceeding, and thereafter shall keep the Indemnitor reasonably informed with respect thereto; provided, that failure of the amount Indemnitee to give the Indemnitor notice as provided herein shall not relieve the Indemnitor of its obligations hereunder except to the Claims extent that the Indemnitor is prejudiced thereby. A claim for indemnification for any matter not involving a third-party Proceeding may be asserted by notice to the party from whom indemnification is sought and Lossesshall be paid promptly after such notice. In Any Indemnitor shall be entitled to participate in the event defense of a such action, lawsuit, proceeding, investigation or other claim by any third partygiving rise to an Indemnitee's claim for indemnification at such Indemnitor's expense, or if there is any claim against a third party available by virtue of and at its option (subject to the circumstances of the Claims and Losses, the indemnifying party may limitations set forth below) shall be entitled to assume the defense or the prosecution thereof by prompt written notice appointing a nationally recognized and reputable counsel reasonably acceptable to indemnified party including the employment of Indemnitee to be the lead counsel or accountants, at its cost and expensein connection with such defense; provided, however, if provided that:
(a) the defendants Indemnitee shall be entitled to participate in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense claim and otherwise participate in such action at the indemnifying party’s expense. The indemnified party shall have the right to employ counsel separate from counsel employed by the indemnifying party in any of its choice for such action and to participate therein, but purpose; provided that the fees and expenses of such separate counsel employed shall be borne by the indemnified party Indemnitee (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnitor effectively assumes control of such defense which, notwithstanding the foregoing, shall be at its expense. The indemnifying party borne by the Indemnitor, and except that the Indemnitor shall not be liable for pay all of the fees and expenses of such separate counsel if the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee); and
(b) if the Indemnitor shall control the defense of any such claim, the Indemnitor shall obtain the prior written consent of the Indemnitee before entering into any settlement of any a claim or ceasing to defend such Claims and Losses effected without its prior written consentclaim if, which shall not pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be unreasonably withheld; provided that imposed against the Indemnitee or if the indemnifying party such settlement does not assume expressly and unconditionally release the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof Indemnitee from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree all liabilities and obligations with respect to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithwithout prejudice.
Appears in 1 contract
Sources: Asset Purchase Agreement (Net Element International, Inc.)
Procedures for Indemnification. An indemnified (a) Promptly after receipt by a party entitled to indemnification hereunder shall notify (the indemnifying party, in writing, "INDEMNITEE") of written notice of the assertion or the commencement of any claim for indemnificationProceeding by a third-party with respect to any matter referred to in SECTIONS 10.2 or 10.3, specifying in reasonable detail the nature Indemnitee shall give written notice thereof to the party obligated to indemnify Indemnitee (the "INDEMNITOR"), which notice shall include a description of the Claims and Losses and, if knownProceeding, the amount or an estimate thereof (if known and quantifiable) and the basis for the Proceeding, and thereafter shall keep the Indemnitor reasonably informed with respect thereto; PROVIDED, that failure of the amount Indemnitee to give the Indemnitor notice as provided herein shall not relieve the Indemnitor of its obligations hereunder except to the extent that the Indemnitor is prejudiced thereby. A claim for indemnification for any matter not involving a third-party Proceeding may be asserted by notice to the party from whom indemnification is sought and shall be paid promptly after (i) the Indemnitor's receipt of such notice, or (ii) if the claim is disputed by the Indemnitor, after resolution of the Claims and Losses. In the event of a claim dispute by any third party, or if there is any claim against a third party available by virtue mutual agreement of the circumstances of the Claims and Losses, the indemnifying party may assume the defense parties or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expenseotherwise; provided, however, if that prior to the defendants in any such action include both Escrow Termination Date, all Buyer claims for indemnification shall satisfy the indemnifying party requirements of SECTION 2.3 hereof and the indemnified party Escrow Agreement and such parties all Buyer Damages shall have reasonable concluded that there may be a conflict between paid from the positions Escrow Amount to the extent of such parties the then-remaining balance thereof. Any Indemnitor shall be entitled to participate in conducting the defense of any such action, lawsuit, proceeding, investigation or other claim giving rise to an Indemnitee's claim for indemnification at such Indemnitor's expense, and at its option (subject to the indemnified party limitations set forth below) shall have the right to select separate legal counsel be entitled to assume the defense thereof by appointing a nationally recognized and reputable counsel reasonably acceptable to the Indemnitee to be the lead counsel in connection with such defense and otherwise defense; PROVIDED that the Indemnitee shall be entitled to participate in the defense of such action at the indemnifying party’s expense. The indemnified party shall have the right claim and to employ counsel separate from counsel employed by the indemnifying party in any of its choice for such action and to participate therein, but purpose; PROVIDED that the fees and expenses of such separate counsel employed shall be borne by the indemnified party Indemnitee (other than any fees and expenses of such separate counsel that are incurred between the date Indemnitee provides to the Indemnitor notice of the claim and the date the Indemnitor effectively assumes control of such defense which, notwithstanding the foregoing, shall be at its expense. borne by the Indemnitor, and except that the Indemnitor shall pay all of the fees and expenses of such separate counsel if the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee).
(b) The indemnifying party Indemnitor shall not be liable 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 (1) the claim for indemnification relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation; (2) the claim seeks an injunction or equitable relief against the Indemnitee; (3) the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee; (4) the claim involves environmental matters in which case the Indemnitee shall have sole control and management authority over the resolution of such claim (including hiring legal counsel and environmental consultants, conducting environmental investigations and cleanups, negotiating with governmental agencies and third parties and defending or settling claims and actions); PROVIDED that the Indemnitee shall keep the Indemnitor apprised of any major developments relating to any environmental claim; (5) upon petition by the Indemnitee, the appropriate court rules that the Indemnitor failed or is failing to vigorously prosecute or defend such claim, or (6) the Indemnitee reasonably believes that the Buyer Damages or the Seller Damages, as the case may be, relating to the claim could exceed the maximum amount that such Indemnitee could then be entitled to recover under the applicable provisions of ARTICLE 10. If the Indemnitor shall control the defense of any such claim, the Indemnitor shall obtain the prior written consent of the Indemnitee before entering into any settlement of any a claim or ceasing to defend such Claims and Losses effected without its prior written consentclaim if, which shall not pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be unreasonably withheld; provided that imposed against the Indemnitee or if the indemnifying party such settlement does not assume expressly and unconditionally release the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof Indemnitee from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree all liabilities and obligations with respect to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithwithout prejudice.
Appears in 1 contract
Procedures for Indemnification. An indemnified party hereunder shall notify the indemnifying party, in writing, Promptly after an Indemnified Party has actual knowledge of any claim for indemnification, specifying in reasonable detail the nature Loss as to which such Indemnified Party reasonably believes indemnification may be sought or promptly after such Indemnified Party receives notice of the Claims commencement of any investigation, litigation, action or other proceeding (including any governmental action or proceeding) involving a Loss, such Indemnified Party shall, if a Loss in respect thereof is to be made against the Indemnifying Parties under this Section 8, deliver to the Indemnifying Parties a written notice of such Loss, and Losses the Indemnifying Parties shall have the right to participate in, and, if knownto the extent the Indemnifying Parties so desire, the amount or an estimate to assume control of the amount of defense thereof with counsel mutually satisfactory to Indemnifying Parties and the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expenseIndemnified Party; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party an Indemnified Party shall have the right to select separate legal retain its own counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but (the fees and expenses of which shall be borne by the Indemnifying Parties) if, in the reasonable opinion of counsel retained by the Indemnifying Parties, the representation by such counsel employed of the Indemnified Party and the Indemnifying Parties would be inappropriate due to actual or potential differing interests between such Indemnified Party and the Indemnifying Parties. In the case of an Indemnified Party, the legal counsel referred to in the immediately preceding sentence shall be selected by the indemnified party shall be Purchasers holding at its expenseleast a majority in interest of the Securities to which the Loss relates. The indemnifying party Indemnified Party shall cooperate with the Indemnifying Parties in connection with any negotiation or defense of any such action or Loss by the Indemnifying Parties and shall furnish to the Indemnifying Parties information reasonably available to the Indemnified Party which relates to such action or Loss. The Indemnifying Parties shall keep the Indemnified Party fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. The Indemnifying Parties shall not be liable for any settlement of any such Claims and Losses Claim effected without its prior written consent; provided, which however, that the Indemnifying Parties shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense withhold, delay or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s condition its consent. The indemnifying party Indemnifying Parties shall not, without the prior written consent of the Indemnified Party, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a full release from all liability in respect to such Loss, action and proceeding. The failure to deliver written notice to the Indemnifying Parties as provided in this Agreement shall not agree to a settlement relieve the Indemnifying Parties of any Claims and Losses which provides for any relief other than liability to the payment of monetary damages or which could have a material precedential impact or effect on Indemnified Parties under this Section 8, except to the business or financial condition of extent that the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses Indemnifying Parties are materially prejudiced in their ability to so defend or prosecute such claim, both parties 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 therewithaction.
Appears in 1 contract
Sources: Note Purchase Agreement
Procedures for Indemnification. An indemnified party hereunder If any Action is asserted, commenced or threatened against any Purchaser Indemnified Person and such Purchaser Indemnified Person intends to seek indemnification for any Purchaser Losses arising from such Action, such Purchaser Indemnified Person shall notify the indemnifying party, in writing, give notice of any claim for indemnification, specifying in reasonable detail the nature such Action to Seller promptly after such Purchaser Indemnified Person has obtained actual knowledge of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expensesuch Action; provided, however, if that the defendants in failure to deliver written notice of any Action to Seller shall not relieve Seller of any liability to Purchaser Indemnified Person under this Article VII with respect to such action include both the indemnifying party and the indemnified party and Action unless Seller's ability to defend such parties shall have reasonable concluded that there may be Action has been adversely affected as a conflict between the positions result of such parties in conducting the defense of any such action, the indemnified party failure. Seller shall have the right to select separate legal counsel participate in and, if desired by Seller, to assume the defense of such defense and otherwise participate in such action at the indemnifying party’s expense. The indemnified party Action with counsel satisfactory to Purchaser Indemnified Person; provided, however, that an Purchaser Indemnified Person (together with all other Purchaser Indemnified Persons that may be represented without conflict by one counsel) shall have the right to employ retain one separate counsel separate from counsel employed if representation of such Purchaser Indemnified Person by the indemnifying counsel retained by Seller would be inappropriate (in the good faith opinion of Purchaser Indemnified Person) because of (i) one or more defenses or counterclaims being available to Purchaser Indemnified Person that are not available to, or are inconsistent with those available to, Seller, or (ii) actual or potential differing interests between such Purchaser Indemnified Person and any other party represented by the counsel retained by Seller in any such action Action (and to participate therein, but the reasonable fees and expenses of any such separate counsel employed by the indemnified party for an Purchaser Indemnified Person shall be at its expensepaid by Seller). The indemnifying party shall If Seller does not be liable for any settlement accept the defense of any Action, a Purchaser Indemnified Person shall have the full right to defend against any such Claims Action and Losses effected without its shall be entitled to settle or agree to pay in full such Action. Notwithstanding the foregoing, under no circumstances shall an Action be settled or compromised by any Purchaser Indemnified Person, nor shall any Purchaser Indemnified Person consent to the entry of any judgment, unless the prior written consentconsent of Seller for such settlement, compromise or judgment has been obtained, which consent shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party. In addition, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party Seller shall not agree enter into any settlement or compromise, or consent to a settlement the entry of any Claims and Losses which judgment, with respect to any Action against a Purchaser Indemnified Person without obtaining the prior written consent of such Purchaser Indemnified Person if such settlement, compromise or judgment (x) provides for any injunctive or non-monetary relief other than the payment of monetary damages against such Purchaser Indemnified Person, or which could have a material precedential impact (y) does not release such Purchaser Indemnified Person from all Liability arising, or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consentthat may arise, from such Action. Whether or not the indemnifying party chooses to so defend or prosecute such claimIn all events and circumstances, both parties Seller and each Purchaser Indemnified Person shall cooperate in the defense or prosecution thereof of any Action subject to this Article VII and the records of each such Person shall furnish be made reasonably available to each other such records, information and testimony, and attend Person with respect to any such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewithdefense.
Appears in 1 contract
Procedures for Indemnification. (a) An indemnified party hereunder Indemnification Claim shall notify be made by an Indemnitee by delivery of a written declaration to the indemnifying partyEquityholders’ Representative requesting indemnification and specifying the basis on which indemnification is sought and the amount of asserted Losses (to the extent known) and, in writing, the case of any claim for indemnificationThird-Party Claim, containing (by attachment or otherwise) such other information as the Indemnitee shall have concerning such Third-Party Claim. An Indemnitee shall be required to provide the Equityholders’ Representative with prompt written notice of an Indemnification Claim, including a Third-Party Claim; provided that the failure to timely provide such notice shall not affect an Indemnitee’s right to indemnification hereunder to the extent the Indemnitor was not materially prejudiced thereby.
(b) If the Indemnification Claim involves a Third-Party Claim, the procedures set forth in Section 11.4 hereof shall be observed by the Indemnitee and the Equityholders’ Representative and the Equityholders. If the Indemnification Claim involves a matter other than a Third-Party Claim, the Equityholders’ Representative shall have thirty (30) days to object to such Indemnification Claim by delivery of a written notice of such objection to the Indemnitee specifying in reasonable detail the nature basis for such objection. No action shall be taken pursuant to the provisions of this Agreement or otherwise by the Indemnitee until the expiration of the Claims thirty (30)-day response period. Failure to timely so object or respond seeking to cure the matter giving rise to an Indemnification Claim shall constitute a final and Losses andbinding acceptance of the Indemnification Claim by the Equityholders and the Indemnification Claim shall be paid in accordance with Section 11.6. If an objection is timely interposed by the Equityholders’ Representative, then the Indemnitee and the Equityholders’ Representative shall negotiate in good faith for a period of thirty (30) days from the date (such period is hereinafter referred to as the “Negotiation Period”) the Indemnitee receives such objection. After the Negotiation Period, if knownthe Equityholders’ Representative and the Indemnitee still cannot agree on the resolution of an Indemnification Claim, either the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense Equityholders’ Representative or the prosecution thereof by prompt written notice to indemnified party including Indemnitee may submit the employment of counsel or accountants, at its cost and expensedispute concerning such Indemnification Claim for resolution as provided in Section 13.2 below; provided, however, if nothing herein shall prevent the defendants parties from seeking equitable or injunctive relief in any a court of equity with respect to such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithdispute.
Appears in 1 contract
Procedures for Indemnification. An Promptly after receipt by an indemnified party pursuant to the provisions of Sections (b) or (c) of this Section 15 of notice of a Claim, such indemnified party shall promptly notify such 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 to the indemnified party otherwise than hereunder shall notify unless the indemnified party is materially prejudiced thereby. In case such action is brought against an indemnified party and it notifies the indemnifying party, in writing, of any claim for indemnification, specifying in reasonable detail the nature party of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Lossescommencement thereof, the indemnifying party shall have the right to participate in, and, to the extent that it may wish, to assume the defense or the prosecution thereof by prompt written notice thereof, with counsel reasonably satisfactory to such indemnified party including the employment of counsel or accountants, at its cost and expenseparty; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party and such parties shall have reasonable reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party, or if there is a conflict between of interest which would prevent counsel for the positions of such parties in conducting indemnifying party from also representing the defense of any such actionindemnified party, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in the defense of such action at the indemnifying on behalf of such indemnified party’s expense. The indemnified party shall have the right to employ counsel separate After notice from counsel employed by the indemnifying party in any to such action and to participate therein, but the fees and expenses of such counsel employed by the indemnified party shall be at of its expense. The election so to assume the defense thereof, the indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, to the indemnified party may settle pursuant to the provisions of such claim without Sections 15(b) or (c) for any legal or other expense subsequently incurred by such indemnified party in connection with the indemnifying party’s consent. 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 agree have employed counsel reasonably satisfactory to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without to represent the indemnified party’s prior written consent. Whether party within a reasonable time after the notice of the commencement of the action, or not (3) the indemnifying party chooses to so defend or prosecute such claimhas authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party, both parties shall cooperate in the defense of any such claim or prosecution litigation, shall, except with the consent of each indemnified party (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 and shall furnish the release from all liability in respect to such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewithclaim or litigation.
Appears in 1 contract
Procedures for Indemnification. An indemnified party hereunder 9.4.1. If any Indemnified Party determines in good faith that it is entitled to indemnification pursuant to this Section 9 and such Indemnified Party desires to seek an indemnification claim hereunder, the Indemnified Party shall notify give to the indemnifying party, in writing, of any claim for indemnification, specifying Indemnifying Party and the Escrow Agent a written notice with respect thereto (a "NOTICE OF CLAIM") setting forth in reasonable detail the nature basis for such claim, and specifying the amount of the Claims and Losses andclaimed (which, if knownnot finally determined, may be a good faith estimate thereof) (the amount of Losses so claimed being hereinafter referred to as the "INDEMNITY CLAIM AMOUNT").
9.4.2. The Indemnifying Party may, within 15 days after receipt of any Notice of Claim, object to such Notice of Claim and dispute the claim in full or an estimate any Indemnity Claim Amount set forth in such Notice of Claim by delivery to the Indemnified Party and the Escrow Agent of written notice of such dispute (a "DISPUTE NOTICE"), setting forth in reasonable detail the basis for such dispute and the amount of the Claims Indemnity Claim Amount which the Indemnifying Party objects to being claimed by the Indemnified Party in respect of the Notice of Claim.
9.4.3. If the Indemnified Party does not receive a Dispute Notice that relates to a Notice of Claim within fifteen (15) days after the Indemnified Party delivers such Notice of Claim, the Escrow Agent will disburse to Purchaser, on behalf of all the Indemnified Parties, from the Escrow Consideration Shares a number of shares with a value, based on the Average Share Price as of the date of disbursement, equal to the Indemnity Claim Amount specified in such Notice of Claim within three (3) Business Days after the expiration of such 15-day period. If the Indemnified Party and Lossesthe Escrow Agent receive a Dispute Notice that relates to a Notice of Claim within fifteen (15) days after receipt of such Notice of Claim, the Escrow Agent (A) will, in respect of such Notice of Claim, disburse to Purchaser, on behalf of the Indemnified Parties, from the Escrow Consideration Shares a number of Consideration Shares with a value, based on the Average Share Price as of the date of disbursement, equal to the portion, if any, of the Indemnity Claim Amount specified in such Notice of Claim which is not objected to in such Dispute Notice within three Business Days after the receipt of such Dispute Notice, and (B) will not disburse to Purchaser from the Escrow Consideration Shares, any shares in respect of such portion of the Indemnity Claim Amount which is objected to in such Dispute Notice unless it has received either a joint notice of release signed by the Indemnifying Party and the Purchaser directing the Escrow Agent to deliver Escrow Consideration Shares with a value, based on the Average Share Price as of the date of delivery of such Escrow Consideration Shares, equal to all or any portion of such funds, which joint notice the parties agree to deliver to the Escrow Agent promptly following resolution of such Notice of Claim, or a final order by a court of competent jurisdiction or an arbitral award, which order or award is not subject to appeal (a "PURCHASER FINAL Order"), directing the Escrow Agent to disburse to Purchaser, on behalf of all the Indemnified Parties, from the Escrow Consideration Shares, shares with a value, based on the Average Share Price as of the date of delivery of such Escrow Consideration Shares, equal to an amount set forth in such Purchaser Final Order.
9.4.4. In the event of a claim by any third party, or if there is any claim against a third party available by virtue that under the terms of the circumstances Escrow Agreement any Escrow Consideration Shares are due to be released from escrow while any dispute under Section 9.4.4 is pending, the number of Escrow Consideration Shares to be released from escrow shall be reduced by a number of Escrow Consideration Shares with a value, based on the Average Share Price as of the Claims date of release, equal to all Indemnity Claim Amounts pending at such time that are either subject to dispute or due to be disbursed to the Purchaser.
9.4.5. If it has been determined that any Indemnified Party is due Escrow Consideration Shares pursuant to Sections 9.2 and Losses9.4 hereof, the indemnifying party Indemnifying Party may assume elect to pay the defense value of the applicable Indemnity Claim Amount (or portion thereof) in immediately available funds (in U.S. dollars) by wire transfer no later than the prosecution thereof date on which release of the Escrow Consideration Shares for such Indemnity Claim Amount (or portion thereof) is required. The Indemnifying Party shall provide Purchaser and the Escrow Agent notice of its election to pay cash no later than five (5) days prior to the date on which release of Escrow Consideration Shares is due. If the Indemnifying Party breaches its obligation and does not make cash payment of such amount on the date so scheduled, Escrow Consideration Shares for the applicable Indemnity Claim Amount (or portion thereof) shall be released to Purchaser on the next day in accordance with the provisions of Section 9.
9.4.6. Prolink Amount Shares will be held in escrow only for the purposes described in this Section 9.4.6 and shall not serve for indemnification for any other matter under Section 9.
2.1. At such time that USDATA or USDATA Sub pays any portion of the Prolink Amount in accordance with and at such time required by prompt the Prolink Agreement, Prolink Amount Shares in an amount equal to the amount so paid divided by the Average Share Price as of the date of payment shall be released from escrow to USDATA. In the event that any Prolink Amount due to be paid to Prolink is not paid by USDATA or USDATA Sub to Prolink as required under the Prolink Agreement, Prolink Amount Shares in an amount equal to the amount so defaulted, based on the Average Share Price as of the date of default will be disbursed to Purchaser. Notwithstanding anything to the contrary, the Prolink Amount Shares shall not be released to USDATA or Purchaser other than in accordance with this Section 9.4.6 and Section 9.4.7. In the event that the Prolink Amount Shares are not sufficient to indemnify Purchaser for any default in payment of the Prolink Amount then any excess damages shall be deemed to be an Excluded Liability. Notwithstanding anything to the contrary set forth herein, when the Prolink Amount has been paid in full by USDATA or any Affiliate of USDATA and written evidence of such payment has been provide to the Escrow Agent and the Purchaser, all Prolink Amount Shares remaining in escrow shall be released to USDATA.
9.4.7. At any time as USDATA or USDATA Sub pays a portion of the Prolink Amount in accordance with and at such time required by the Prolink Agreement, it shall provide the Escrow Agent and the Purchaser with written notice to indemnified party including the employment with respect thereto which notice shall be deemed a Notice of counsel or accountantsClaim under Section 9.4.1. Purchaser may, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense within 15 days after receipt of any such actionnotice, dispute such notice and give to USDATA and the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party Escrow Agent a written notice with respect thereto which notice shall be deemed a Dispute Notice under Section 9.4.2. In addition, Purchaser may also provide the Seller and the Escrow Agent a written notice at its expenseany time requesting that Prolink Amount Shares be disbursed to the Purchaser in accordance with Section 9.4.6 above, if Purchaser determines in good faith that USDATA or USDATA Sub is in default under the Prolink Agreement, which notice shall be deemed a Notice of Claim under Section 9.4.1. The indemnifying party shall not be liable for any settlement and USDATA may, within 15 days after receipt of any such Claims notice, dispute such notice and Losses effected without its prior give to the Purchaser and the Escrow Agent a written consent, notice with respect thereto which notice shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of deemed a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithDispute Notice under Section 9.4.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tecnomatix Technologies LTD)
Procedures for Indemnification. An indemnified The procedures for indemnification shall be as follows:
A. The party hereunder claiming the indemnification (the "Claimant") shall notify promptly give notice to the indemnifying party, in writing, party from whom indemnification is claimed (the "Indemnifying Party") of any claim for indemnificationclaim, whether between the parties or brought by a third party, specifying in reasonable detail detail, to the nature of extent known (i) the Claims factual basis for such claim, and Losses and, if known, the amount or an estimate of (ii) the amount of the Claims and Lossesclaim. In If the event claim relates to an action, suit or proceeding filed by a third party against Claimant, such notice shall be given by Claimant within five (5) days after written notice of such action, suit or proceeding was given to Claimant. Notwithstanding the foregoing, any delay in providing such notice shall not affect the Claimant's rights hereunder except to the extent the Indemnifying Party is actually prejudiced by such delay.
B. Following receipt of notice from the Claimant of a claim, the Indemnifying Party shall have thirty (30) days to make such investigation of the claim as the Indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Claimant agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Claimant to substantiate the claim. If the Claimant and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any third partymutually agreed upon extension thereof) to the validity and amount of such claim, or if there is the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Claimant the full amount of the claim. If the Claimant and the Indemnifying Party do not agree within said period (or any mutually agreed upon extension thereof), the Claimant may seek appropriate legal remedy.
C. With respect to any claim against by a third party available by virtue as to which the Claimant is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense, to participate in or assume control of the circumstances defense of the Claims and Lossessuch claim, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties Claimant shall have cooperate fully with the Indemnifying Party, subject to reimbursement for reasonable concluded that there may be actual out-of-pocket expenses incurred by the Claimant as the result of a conflict between request by the positions Indemnifying Party. If the Indemnifying Party elects to assume control of such parties in conducting the defense of any such actionthird-party claim, the indemnified party Claimant shall have the right to select separate legal counsel 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 such defense and control or otherwise participate in such action at the indemnifying party’s expense. The indemnified defense of any third party claim, it shall have the right to employ counsel separate from counsel employed be bound by the indemnifying party results obtained in any such action and to participate therein, but the fees and expenses of such counsel employed good faith by the indemnified party Claimant with respect to such claim.
F. The indemnification rights provided in Sections 10.2 and 10.3 shall extend to the shareholders, directors, officers, partners employees and representatives of the Claimant although for the purpose of the procedures set forth in this Section 10.4, any indemnification claims by such parties shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims made by and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if through the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithClaimant.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Procedures for Indemnification. An indemnified If a party hereunder entitled to indemnification under this Section 11 (an “Indemnitee”) asserts that a party obligated to indemnify it under this Section 11 (an “Indemnitor”) has become obligated to such Indemnitee pursuant to Section 11.2 or Section 11.3, or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnitor may become obligated to an Indemnitee hereunder, such Indemnitee shall notify give written notice thereof to the indemnifying partyIndemnitor describing, in writingreasonable detail, of any claim for indemnification, specifying in reasonable detail the nature of the Claims claim and Losses andindicating the amount (estimated, if knownnecessary) of any Losses that have been or may be sustained by such Indemnitee. The Indemnitor shall have the right, but not the amount obligation, to defend, contest or an estimate of otherwise protect the amount of the Claims and Losses. In the event of a Indemnitee against any such suit, action, investigation, claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, proceeding at its sole cost and expense; provided. If the Indemnitor so elects to defend, however, if contest or otherwise protect the defendants in Indemnitee against any such suit, action, investigation, claim or proceeding, the Indemnitee shall (i) make available to the Indemnitor all relevant books and records in its possession, (ii) cooperate with and assist the Indemnitor to the extent reasonably possible and (iii) not compromise or settle any such suit, action include both the indemnifying party and the indemnified party and such parties investigation, claim or proceeding. The Indemnitee shall have reasonable concluded that there may be a conflict between the positions of such parties right, but not the obligation, to participate at its own expense in conducting the defense thereof by counsel of any the Indemnitee’s choice. If the Indemnitor fails to defend, contest or otherwise protect against such suit, action, investigation, claim or proceeding, the indemnified party Indemnitee shall have the right to select separate legal counsel do so and the Indemnitee shall be entitled to assume recover the entire cost thereof from the Indemnitor (to the extent constituting indemnifiable Losses under this Section 11 and subject to the provisions of this Section 11), including, without limitation, reasonable attorneys’ fees, disbursements and amounts paid as the result of such defense suit, action, investigation, claim or proceeding and otherwise participate in such action at that constitute indemnifiable Losses under this Section 11, provided that the indemnifying party’s expense. The indemnified party Indemnitee shall have the right to employ counsel separate from counsel employed by the indemnifying party in not compromise or settle any such action and to participate thereinsuit, but action, investigation, claim or proceeding without the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consentconsent of the Indemnitor, which consent shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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.
Appears in 1 contract
Procedures for Indemnification. An Promptly after receipt by an indemnified party hereunder pursuant to the provisions of Section 11.1 or Section 11.2 of notice of the commencement of any action involving the subject matter of such indemnity provisions, such indemnified party shall, if a claim is to be made against an indemnifying party pursuant to the provisions of Section 11.1 or Section 11.2, promptly notify such indemnifying party of the commencement of such action; but the omission so to notify such indemnifying party shall notify not relieve the indemnifying party from any liability which it may have to the indemnified party, in writing, of any claim for indemnification, specifying in reasonable detail . In case such action is brought against an indemnified party and it notifies the nature indemnifying party of the Claims and Losses and, if known, the amount or an estimate commencement of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Lossessuch action, the indemnifying party shall have the right to participate in and, to the extent that it may wish, to assume the defense or the prosecution thereof by prompt written notice of such action, with counsel satisfactory to such indemnified party including the employment of counsel or accountants, at its cost and expenseparty; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party and such parties shall have reasonable reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party, or if there is a conflict between of interest which would prevent counsel for the positions of such parties in conducting indemnifying party from also representing the defense of any such actionindemnified party, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in the defense of such action on behalf of such indemnified party, at the expense of the indemnifying party’s expense. The indemnified party shall have the right to employ counsel separate After notice from counsel employed by the indemnifying party in any such action and to participate therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The of the indemnifying party's election so to assume the defense of such action, the indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, to the indemnified party may settle pursuant to the provisions of Sections 11.1 or 11.2 for any legal or other expense subsequently incurred by such claim without indemnified party in connection with the indemnifying party’s consent. The defense of such action 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 agree have employed counsel satisfactory to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without to represent the indemnified party’s prior written consent. Whether party within a reasonable time after the notice of the commencement of the action, or not (c) the indemnifying party chooses has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party shall, except with the consent of each indemnified party, consent to so defend entry of any judgment or prosecute enter into any settlement which does not include as an unconditional term of such settlement the release of all indemnified parties from all liability in respect of such claim. Notwithstanding anything contained in this paragraph 11.3 to the contrary, both parties the forgoing indemnity shall cooperate only apply upon the issuance of a final adverse judgement in a court of competent jurisdiction or settled with the defense or prosecution thereof and shall furnish Buyer's consent, such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may consent not to be reasonably requested in connection therewithunreasonably withheld.
Appears in 1 contract
Sources: Stock Purchase Agreement (Paradigm Music Entertainment Co)
Procedures for Indemnification. An indemnified (a) The party hereunder claiming indemnification (the "Claimant") shall notify promptly give written notice of the indemnifying claim to the party from whom indemnification is claimed (the "Indemnifying Party"), whether involving a claim between the parties or brought by a third party, in writing, of any claim for indemnification, specifying (i) in reasonable detail the nature of factual basis for the Claims claim, and Losses and, if known, the amount or an estimate of (ii) the amount of the Claims and LossesIndemnification Fund to be reserved against the claim (if Buyer is the Claimant). In If the event of a claim relates to an action, suit or proceeding filed by any third party, or if there is any claim against a third party available against the Claimant, such notice shall be given by virtue the Claimant within ten days after written notice of such action, suit, or proceeding was given to the Claimant. Following receipt of notice from the Claimant of a claim, the Indemnifying Party shall have thirty days to make such investigation of the circumstances claim as the Indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Claimant agrees to make available to the Indemnifying Party and/or its authorized representatives the information relied upon by the Claimant to substantiate the claim. If Buyer and Trustee agree at or prior to the expiration of the Claims thirty-day period (or any mutually agreed upon extension thereof) to the validity and Lossesamount of such claim, Trustee shall immediately disburse to Buyer such portion of the indemnifying party may assume Indemnification Fund as shall be necessary to reimburse Buyer for such claim, if Buyer is the defense Claimant, or Buyer shall reimburse the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, howeverEstate for such claim, if the defendants in any such action include both Estate is the indemnifying party Claimant. If the Claimant and the indemnified Indemnifying Party do not agree within the thirty-day period (or any mutually agreed upon extension thereof), the Claimant may seek from the Court an appropriate remedy at law or inequity.
(b) With respect to any claim by a third party and such parties as to which the Claimant is entitled to indemnification under this Agreement, the Indemnifying Party shall have reasonable concluded that there may be a conflict between the positions right at its own expense, to participate in or assume control of the defense of such parties in conducting claim, and the Claimant shall cooperate fully with the Indemnifying Party, subject to reimbursement for actual out-of-pocket expenses incurred by the Claimant as the result of a request by the Indemnifying Party. If the Indemnifying Party elects to assume control of the defense of any such actionthird-party claim, the indemnified party Claimant shall have the right to select separate legal counsel participate in the defense of such claim at its own expense. If the Indemnifying Party does not elect to assume such defense and control or otherwise participate in such action at the indemnifying party’s expense. The indemnified defense of any third party claim, it shall have the right to employ counsel separate from counsel employed be bound by the indemnifying party in any such action and to participate therein, but the fees and expenses of such counsel employed results obtained by the indemnified party Claimant with respect to such claim.
(c) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make every effort to reach a decision with respect thereto as expeditiously as possible.
(d) The indemnifications rights provided in this Section shall extend to the shareholders, directors, officers, employees, and representatives of any Claimant, although for the purpose of the procedures set forth in this Section 13.5, any indemnification claims by such parties shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims made by and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if through the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithClaimant.
Appears in 1 contract
Sources: Asset Purchase Agreement (Paxson Communications Corp)
Procedures for Indemnification. An indemnified party hereunder shall notify the indemnifying party, in writing, of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of If a claim by any third partyPurchaser Indemnitee asserts that it is entitled to indemnification under this Article XIV, or if there any suit, action, investigation, claim or proceeding (each, a "PROCEEDING") is any claim against begun, made or instituted as a third party available by virtue result of which the circumstances of the Claims and LossesPurchaser Indemnitee may become entitled to indemnification hereunder, the indemnifying party may assume the defense or the prosecution thereof by such Purchaser Indemnitee shall give prompt written notice to indemnified party including the employment Principal Stockholders; PROVIDED, HOWEVER, that no delay on the part of counsel the Purchaser Indemnitee in notifying the Principal Stockholders shall relieve the Principal Stockholders from any obligation hereunder unless, and then solely to the extent that, the Principal Stockholders are materially prejudiced thereby. The Principal Stockholders shall defend, contest or accountants, otherwise protect the Purchaser Indemnitee against any such Proceeding at its their sole cost and expense; provided. The Purchaser Indemnitee shall have the right, howeverbut not the obligation, if to participate at its own expense in the defendants defense thereof by counsel of the Purchaser Indemnitee's choice and shall in any event cooperate with and assist the Principal Stockholders to the extent reasonably possible. If the Principal Stockholders fail timely to defend, contest or otherwise protect against such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such actionProceeding, the indemnified party Purchaser Indemnitee shall have the right to select separate legal counsel do so, and the Purchaser Indemnitee shall be entitled to assume such defense recover the entire cost thereof, including, without limitation, reasonable attorneys' fees, disbursements and otherwise participate in such action at amounts paid as the indemnifying party’s expense. 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 therein, but the fees and expenses result of such counsel employed by Proceeding. If the indemnified party shall be at its expense. The indemnifying party shall not be liable for Principal Stockholders assume the defense of any Proceeding, (i) no compromise or settlement of any such Claims and Losses claims may be effected without its prior written the Purchaser' consent, which shall not be unreasonably withheld, unless (x) there is no finding or admission of any violation of federal, state, local, municipal, foreign, international, multinational or other administrative order, law, ordinance, principal of common law, regulation, statute or treaty or any violation of the rights of any Person and no effect on any other claims that may be made against Purchaser Indemnitee and (y) the sole relief provided is monetary damages that are paid in full by the Principal Stockholders; provided that if and (ii) the indemnifying party does not assume the defense Purchaser Indemnitees will have no liability with respect to any compromise or prosecution settlement of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim claims effected without the indemnifying party’s Purchaser Indemnitee's consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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.
Appears in 1 contract
Sources: Merger Agreement (Medical Staffing Network Holdings Inc)
Procedures for Indemnification. An indemnified Promptly after receipt by a party entitled to indemnification hereunder shall notify (the indemnifying party, in writing, “Indemnitee”) of written notice of the assertion or the commencement of any claim for indemnificationProceeding by a third-party with respect to any matter referred to in Sections 7.2 or 7.3, specifying in reasonable detail the nature Indemnitee shall give written notice thereof to the party obligated to indemnify Indemnitee (the “Indemnitor”), which notice shall include a description of the Claims and Losses and, if knownProceeding, the amount or an estimate thereof (if known and quantifiable) and the basis for the Proceeding, and thereafter shall keep the Indemnitor reasonably informed with respect thereto; provided, that failure of the amount Indemnitee to give the Indemnitor notice as provided herein shall not relieve the Indemnitor of its obligations hereunder except to the Claims extent that the Indemnitor is prejudiced thereby. A claim for indemnification for any matter not involving a third-party Proceeding may be asserted by notice to the party from whom indemnification is sought and Lossesshall be paid promptly after such notice. In Any Indemnitor shall be entitled to participate in the event defense of a such action, lawsuit, proceeding, investigation or other claim by any third partygiving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, or if there is any claim against a third party available by virtue of and at its option (subject to the circumstances of the Claims and Losses, the indemnifying party may limitations set forth below) shall be entitled to assume the defense or the prosecution thereof by prompt written notice appointing a reputable counsel reasonably acceptable to indemnified party including the employment of Indemnitee to be the lead counsel or accountants, at its cost and expensein connection with such defense; provided, however, if provided that:
(a) the defendants Indemnitee shall be entitled to participate in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense claim and otherwise participate in such action at the indemnifying party’s expense. The indemnified party shall have the right to employ counsel separate from counsel employed by the indemnifying party in any of its choice for such action and to participate therein, but purpose; provided that the fees and expenses of such separate counsel employed shall be borne by the indemnified party Indemnitee (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnitor effectively assumes control of such defense which, notwithstanding the foregoing, shall be at its expense. The indemnifying party borne by the Indemnitor, and except that the Indemnitor shall pay all of the fees and expenses of such separate counsel if the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee);
(b) the Indemnitor shall not be liable 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 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, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would be detrimental to or injure the Indemnitee’s reputation or future business prospects; (iii) the claim seeks an injunction or equitable relief against the Indemnitee; (iv) the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee; (v) upon petition by the Indemnitee, the appropriate court rules that the Indemnitor failed or is failing to vigorously prosecute or defend such claim, or (vi) the Indemnitee reasonably believes that the Buyer Damages or the Seller Damages, as the case may be, relating to the claim could exceed the maximum amount that such Indemnitee could then be entitled to recover under the applicable provisions of Section 7; and
(c) if the Indemnitor shall control the defense of any such claim, the Indemnitor shall obtain the prior written consent of the Indemnitee before entering into any settlement of any a claim or ceasing to defend such Claims and Losses effected without its prior written consentclaim if, which shall not pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be unreasonably withheld; provided that imposed against the Indemnitee or if the indemnifying party such settlement does not assume expressly and unconditionally release the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof Indemnitee from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree all liabilities and obligations with respect to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithwithout prejudice.
Appears in 1 contract
Sources: Share Purchase Agreement (Usana Health Sciences Inc)
Procedures for Indemnification. (a) An indemnified party hereunder Indemnification Claim shall notify be made by an Indemnitee by delivery of a written notice to the indemnifying partyIndemnitor Representative (as defined in Section 9.10 below) requesting indemnification and specifying the basis on which indemnification is sought and the amount of asserted Losses and, in writingthe case of a Third Party Claim, containing (by attachment or otherwise) such other information as such Indemnitee shall have concerning such Third Party Claim.
(b) If the Indemnification Claim involves a Third Party Claim the procedures set forth in Section 9.3 shall be observed by the Indemnitee and the Indemnitor Representative.
(c) If the Indemnification Claim involves a matter other than a Third Party Claim, the Indemnitor Representative shall have 30 days to object to such Indemnification Claim by delivery of any claim for indemnification, a written notice of such objection to such Indemnitee specifying in reasonable detail the nature basis for such objection. Failure to timely so object shall constitute a final and binding acceptance of the Claims Indemnification Claim by the Indemnitor Representative on behalf of all Indemnitors, and Losses and, if known, the amount or an estimate Indemnification Claim shall be paid in accordance with subsection (d) hereof.
(d) Upon determination of the amount of an Indemnification Claim, whether by agreement between the Claims Indemnitor Representative and Lossesthe Indemnitee or by an arbitration award or by any other final adjudication, the Indemnitors shall pay the amount of such Indemnification Claim within ten days of the date such amount is determined. In the event that the Shareholders are the Indemnitors that are required to pay an Indemnification Claim, if the Shareholders beneficially own shares of a claim ICCE Common Stock as of such date, the Shareholders shall, if so required by any third partyICCE, or if there is any claim against a third party available pay the amount of such Indemnification Claim by virtue surrender to ICCE of such number of shares of ICCE Common Stock as shall equal the quotient obtained by dividing the amount of such Indemnification Claim by the amount set forth in Section 9.2 of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expenseICCE Disclosure Memorandum; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does Shareholders do not assume beneficially own a sufficient number of shares of ICCE Common Stock to pay in full the defense or prosecution amount of a third-party claim such Indemnification Claim by surrender of such shares as provided above within thirty (30) Days after notice thereof from in the indemnified partypreceding clause of this sentence, the indemnified party may settle Shareholders shall surrender to ICCE such claim without the indemnifying party’s consent. The indemnifying party number of shares of ICCE Common Stock as such Shareholders beneficially own and shall not agree to a settlement of pay any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition remaining balance of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties shall cooperate Indemnification Amount 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 therewithcash.
Appears in 1 contract
Sources: Merger Agreement (Acsys Inc)
Procedures for Indemnification. An indemnified (1) If a claim is made by any Taxing authority, which, if successful, might result in an indemnity payment by a party hereunder ("Tax Indemnitor") to another ("Tax Indemnitee") pursuant to Section 10(c), Tax Indemnitee shall promptly notify the indemnifying partyTax Indemnitor in writing of such claim (a "Tax Claim"). If notice of a Tax Claim is not given to Tax Indemnitor within a sufficient period of time to allow Tax Indemnitor to effectively contest such Tax Claim, in writing, of any claim for indemnification, specifying or in reasonable detail to apprise Tax Indemnitor of the nature of the Claims Tax Claim, in each case taking into account the facts and Losses circumstances with respect to such Tax Claim, Tax Indemnitor shall not be liable to Tax Indemnitee to the extent that Tax Indemnitor's ability to effectively contest such Tax Claim is actually prejudiced as a result thereof.
(2) With respect to any Tax Claim, Tax Indemnitor shall control all proceedings taken in connection with such Tax Claim (including, without limitation, selection of counsel) and, if knownwithout limiting the foregoing, may in its sole discretion pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any Taxing authority with respect thereto and may, in its sole discretion, either pay the amount Tax Claim and ▇▇▇ for a refund where applicable law permits such refund suits or an estimate of contest the amount of the Claims and Losses. In the event of a claim by Tax Claim in any third partypermissible manner, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party Tax Indemnitor shall not be liable for any settlement of any such Claims settle or compromise a Tax Claim without giving a 30-day notice to Tax Indemnitee and Losses effected without its prior written Tax Indemnitee's consent, which shall not be unreasonably withheld; provided that , if such settlement or compromise would result in an increase in the indemnifying party does not assume the defense Tax liabilities of Tax Indemnitee or prosecution members of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides its affiliated group for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithTaxable period.
Appears in 1 contract
Sources: Stock Purchase Agreement (C H Robinson Worldwide Inc)
Procedures for Indemnification. An indemnified party hereunder shall notify Parent agrees to give prompt notice to the indemnifying party, in writing, Shareholder Representative of the assertion of any claim for indemnificationclaim, specifying or the commencement of any suit, action or proceeding in reasonable detail respect of which indemnity may be sought under this Article; provided that the failure to give such notice shall not affect the rights of the Parent Indemnified Parties except to the extent the Company Shareholders are materially prejudiced by such failure. The notice shall state the information then available regarding the amount and nature of such claim, liability or expense and shall specify the Claims and Losses and, if knownprovision or provisions of this Agreement under which the liability or obligation is asserted. If the Shareholder Representative admits responsibility for indemnification with respect to such claim, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice Shareholder Representative shall be entitled to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting control the defense of any such actionsuit, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action or proceeding at the indemnifying party’s his own expense. The indemnified party Parent Indemnified Party shall have cooperate with the right Shareholder Representative in such defense; provided that the Parent Indemnified Party shall not be obligated to employ counsel separate from counsel employed by incur any out-of-pocket expenses except to the indemnifying party extent the Shareholder Representative agrees in any writing to reimburse the Parent Indemnified Party for such action and to participate therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expenseas they are incurred. The indemnifying party Company Shareholders shall not be liable for any settlement of any such Claims and Losses effected without its prior written consentconsent of any claim, litigation or proceeding in respect of which indemnification may be sought hereunder; provided that such consent shall not be unreasonably withheld; provided that if . Without the indemnifying party does consent of Parent, which consent shall not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified partybe unreasonably withheld, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party Shareholder Representative shall not agree to a settle any claim, litigation or proceeding in respect of which indemnity may be sought hereunder if such settlement involves an admission of any Claims and Losses which provides for any relief other than the payment of monetary damages liability or which could have a material precedential impact or effect wrongdoing on the business or financial condition part of the indemnified party without Parent Indemnified Party, or a restriction on the indemnified party’s prior written consent. Whether operation of Parent's or not the indemnifying party chooses to so defend or prosecute such claim, both parties shall cooperate Parent Indemnified Party's business in the defense future 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 therewithwould materially adversely affect the Tax liability of the Parent Indemnified Party.
Appears in 1 contract
Sources: Merger Agreement (Landacorp Inc)
Procedures for Indemnification. An indemnified If a party hereunder shall notify the indemnifying party, in writing, of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount entitled to indemnification under this Section 10 (an "Indemnitee") asserts that a party obligated to indemnify it under this Section 10 (an "Indemnitor") has become obligated to such Indemnitee pursuant to Section 10.2 or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party10.3, or if there any suit, action, investigation, claim or proceeding is any claim against begun, made or instituted as a third party available by virtue result of which the circumstances of the Claims and LossesIndemnitor may become obligated to an Indemnitee hereunder (a "Third Party Claim"), the indemnifying party may assume the defense or the prosecution thereof by such Indemnitee shall give prompt written notice thereof to indemnified party including the employment of counsel or accountants, at its cost and expenseIndemnitor; provided, however, if that the defendants in failure of the Indemnitee to give prompt notice to the Indemnitor shall not release the Indemnitor of its indemnification obligations hereunder, except to the extent the Indemnitor shall have been prejudiced by such lack of timely and adequate notice. The Indemnitor shall have the right, but not the obligation, upon written notice to the Indemnitee within 15 days of receipt of notice of commencement of a Third Party Claim, to defend, contest or otherwise protect the Indemnitee against any such action include both suit, action, investigation, claim or proceeding at its sole cost and expense with counsel selected by the indemnifying party Indemnitor and reasonably satisfactory to the indemnified party and such parties shall have reasonable concluded that there may be a conflict between Indemnitee. If the positions of such parties in conducting Indemnitor assumes the defense of any such actionThird Party Claim, the Indemnitor shall not, without the prior written consent of the Indemnitee, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or judgment (i) involves a finding or admission of wrongdoing, (ii) does not include an unconditional written release by the claimant or plaintiff of the Indemnitee from all liability in respect of such Third Party Claim or (iii) imposes equitable remedies or any obligation on the Indemnitee other than solely the payment of money damages for which the Indemnitee will be indemnified party hereunder. If the Indemnitor so elects to defend, contest or otherwise protect the Indemnitee, the Indemnitee shall (i) make available to the Indemnitor all relevant books and records in its possession and (ii) cooperate and assist the Indemnitor to the extent reasonably possible. The Indemnitee shall have the right right, but not the obligation, to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. The indemnified party shall have defense thereof by counsel of the right to employ counsel separate from counsel employed by the indemnifying party in any such action and to participate thereinIndemnitee's choice, but the fees and expenses of such counsel employed by the indemnified party shall be at its expensethe expense of the Indemnitee unless the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnitor and the Indemnitee, and the Indemnitee reasonably determines, based upon a written opinion of outside counsel, that representation by counsel to the Indemnitor of both the Indemnitee and the Indemnitor may present such counsel with a conflict of interest. The indemnifying party If the Indemnitor fails to defend, contest or otherwise protect against such Third Party Claim, the Indemnitee shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and the Indemnitee shall be entitled to recover the entire cost thereof from the Indemnitor, including, without limitation, reasonable attorneys' fees, disbursements and amounts paid as the result of such suit, action, investigation, claim or proceeding; provided that the Indemnitee shall not be liable for any settlement of compromise or settle any such Claims and Losses effected suit, action, investigation, claim or proceeding without its the prior written consentconsent of the Indemnitor, which consent shall not be unreasonably withheld; provided that if . In the indemnifying party does not assume event of any conflict between the defense or prosecution provisions of a third-party claim as provided above within thirty (30) Days after notice thereof from this Section 10.4 and the indemnified partyprovisions of Section 9, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement provisions of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 appealsSection 9, as may be reasonably requested in connection therewiththey relate solely to Tax liabilities, shall govern.
Appears in 1 contract
Procedures for Indemnification. An indemnified party hereunder (a) The Indemnitee shall notify give written notice (the indemnifying party, in writing, “Indemnification Notice”) of any Damages or the commencement of any Proceeding by a third party with respect to any matter referred to in Section 10.2 thereof to the Indemnitor and the Escrow Agent, which Indemnification Notice shall include a description of the Damages or Proceeding, the amount thereof (if known and quantifiable) and the basis for the Damages or Proceeding; provided, that failure of the Indemnitee to give the Indemnification Notice as provided herein shall not relieve the Indemnitor of its obligations hereunder.
(b) If the Indemnitor does not object to the Damages within twenty (20) Business Days of Indemnitee’s delivery of the Indemnification Notice to Indemnitor, after Indemnitee’s delivery of a written notice of cancellation (the “Cancellation Notice”) to the Indemnitor and the Escrow Agent, the Indemnitee shall be entitled to immediately offset the aggregate amount of Damages set forth in the Indemnification Notice against the Closing Escrow Shares (whether by means of the cancellation of any shares of Common Stock issuable to Indemnitor or otherwise). Indemnitor may object to the claim for indemnificationon the Indemnification Notice by delivery to Indemnitee (with a copy to the Escrow Agent) of such objection in writing within twenty (20) Business Days of Indemnitee’s delivery of the Indemnification Notice to Indemnitor. In case Indemnitor shall so object in writing to any claim or claims by Indemnitee made in any Indemnification Notice, specifying Indemnitee shall have thirty (30) days after receipt of such objection to respond in reasonable detail a written statement that describes the nature of the Claims and Losses and, if known, the amount or an estimate such objection and/or Indemnitor’s assessment of the amount of the Claims Damages. If after such thirty (30) day period there remains a dispute as to any claims, Indemnitee and Losses. In Indemnitor shall attempt in good faith for thirty (30) days to agree upon the event of a claim by any third party, or if there is any claim against a third party available by virtue rights of the circumstances respective parties with respect to each of such claims. If no agreement can be reached after good faith negotiation between the Claims parties pursuant to this Section, then the parties shall subject such dispute to the dispute resolution procedures set forth in Section 11.13.
(c) Indemnitor shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, and Losses, at its option (subject to the indemnifying party may limitations set forth below) shall be entitled to assume the defense or the prosecution thereof by prompt written notice appointing a nationally recognized and reputable counsel reasonably acceptable to indemnified party including the employment of Indemnitee to be the lead counsel or accountants, at its cost and expensein connection with such defense; provided, however, if provided that:
(i) the defendants Indemnitee shall be entitled to participate in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense claim and otherwise participate in such action at the indemnifying party’s expense. The indemnified party shall have the right to employ counsel separate from counsel employed by the indemnifying party in any of its choice for such action and to participate therein, but purpose; provided that the fees and expenses of such separate counsel employed shall be borne by the indemnified party Indemnitee (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnitor effectively assumes control of such defense which, notwithstanding the foregoing, shall be at its expense. The indemnifying party borne by the Indemnitor, and except that the Indemnitor shall pay all of the fees and expenses of such separate counsel if the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee);
(ii) the Indemnitor shall not be liable 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: (A) the claim for indemnification relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation; (B) the Indemnitee reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would be detrimental to or injure the Indemnitee’s reputation or future business prospects; (C) the claim seeks an injunction or equitable relief against the Indemnitee; (D) the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee; (E) the claim involves environmental matters in which case the Indemnitee shall have sole control and management authority over the resolution of such claim (including hiring legal counsel and environmental consultants, conducting environmental investigations and cleanups, negotiating with governmental agencies and third parties and defending or settling claims and actions); provided that the Indemnitee shall keep the Indemnitor apprised of any major developments relating to any environmental claim; (F) upon petition by the Indemnitee, the appropriate court rules that the Indemnitor failed or is failing to vigorously prosecute or defend such claim; or (G) the Indemnitee reasonably believes that the Damages relating to the claim could exceed the maximum amount that such Indemnitee could then be entitled to recover under the applicable provisions of Article 10; and
(iii) if the Indemnitor shall control the defense of any such claim, the Indemnitor shall obtain the prior written consent of the Indemnitee before entering into any settlement of any a claim or ceasing to defend such Claims and Losses effected without its prior written consentclaim if, which shall not pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be unreasonably withheld; provided that imposed against the Indemnitee or if the indemnifying party such settlement does not assume expressly and unconditionally release the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof Indemnitee from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree all Liabilities with respect to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithwithout prejudice.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cardium Therapeutics, Inc.)
Procedures for Indemnification. An indemnified (a) If a party hereunder shall notify the indemnifying party, in writing, of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount entitled to indemnification under this Section 10 (an "Indemnitee") asserts that a party obligated to indemnify it under this Section 10 (an "Indemnitor") has become obligated to such Indemnitee pursuant to Section 10.2 or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party10.3, or if there any suit, action, investigation, claim or proceeding is any claim against begun, made or instituted as a third party available by virtue result of which the circumstances of the Claims and LossesIndemnitor may become obligated to an Indemnitee hereunder, the indemnifying party may assume the defense or the prosecution thereof by prompt such Indemnitee shall give written notice to indemnified party including the employment of counsel Indemnitor. The Indemnitor agrees to defend, contest or accountantsotherwise protect the Indemnitee against any such suit, action, investigation, claim or proceeding at its sole cost and expense; provided. The Indemnitor shall not consent to a settlement of, howeveror the entry of any judgment arising from, any such suit, action investigation, claim or proceeding unless it has given 15 days' prior written notice of the same to the Indemnitee and has obtained the written consent of the Indemnitee to such settlement or judgment, which consent will not be withheld if the defendants sole relief is monetary damages that will be paid in full by the Indemnitor and otherwise will not be unreasonably withheld. The Indemnitee shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of the Indemnitee's choice and shall in any event cooperate with and assist the Indemnitor to the extent reasonably possible. If the Indemnitor fails timely to defend, contest or otherwise protect against such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such suit, action, investigation, claim or proceeding, the indemnified party Indemnitee shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. The indemnified party shall have do so, including, without limitation, the right to employ counsel separate from counsel employed by make any compromise or settlement thereof, and the indemnifying party in any such action and to participate therein, but the fees and expenses of such counsel employed by the indemnified party Indemnitee shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if entitled to recover the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice entire cost thereof from the indemnified partyIndemnitor, including, without limitation, reasonable attorneys' fees, disbursements and amounts paid as the result of such suit, action, investigation, claim or proceeding.
(b) Neither the Seller nor the Seller Parties will have liability (for indemnification or otherwise) with respect to the matters described in Section 10.2(i) (other than for a breach of Sections 5.5, 5.9 5.13(a) or 5.20) until the total of all Losses with respect to such matters exceeds three hundred seventy five thousand dollars ($375,000), it being understood that once such amount is exceeded, the indemnified party may settle Seller and the Seller Parties shall be jointly and severally liable for the aggregate of all such claim without Losses (from the indemnifying party’s consentfirst dollar of Loss). The indemnifying party In no event shall not agree any liability of Seller or the Seller Parties with respect to the matters described in Section 10.2(i) (other than for a settlement breach of Sections 5.5, 5.9, 5.13(a) or 5.20) exceed eight million six hundred thousand dollars ($8,600,000), in the aggregate.
(c) For purposes of Section 10.2(i), all Losses arising out of or relating to breach of Section 5.12 shall be computed net of any Claims and net collections from insurance policies that reduce the Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 that would otherwise be reasonably requested in connection therewithsustained.
Appears in 1 contract
Sources: Securities Purchase Agreement (Mueller Industries Inc)
Procedures for Indemnification. An indemnified party hereunder (a) If any of the Parent Indemnified Parties seek indemnification under this Article VIII, Parent shall notify give notice ("Claim Notice") to the indemnifying partyShareholder Representative of the basis of the claim (the "Claim") (i) within a reasonable time after discovery of the facts and (ii) in any event, within the time periods set forth in writingSection 8.1, provided that the failure to give such notice shall not relieve the Company Shareholders of any claim for indemnification, specifying in reasonable detail liability hereunder except to the nature extent that the Company Shareholders are materially adversely prejudiced by such failure. The Shareholder Representative shall give notice to Parent within fifteen (15) business days after receipt of the Claims and Losses andnotice requested by this Section 8.3 advising whether he (i) acknowledges the Company Shareholders' obligation to indemnify the Parent Indemnified Parties or (ii) disputes the obligation to indemnify the Parent Indemnified Parties. If the Shareholder Representative acknowledges the Company Shareholders' indemnification obligation with respect to the Claim, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties Claim is based upon an asserted liability or obligation to a person or entity that is not a party to this Agreement (a "Third Party Claim"), Parent shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting control and conduct the defense of any such actionThird Party Claim, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expenseincluding settlement. 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 therein, but the fees and expenses of such counsel employed by the indemnified party Shareholder Representative shall be entitled (on behalf of the Company Shareholders), at its expense, to participate in, but not to determine or conduct the defense of any such Claim. The indemnifying party Notwithstanding anything to the contrary set forth herein, except with the consent of the Shareholder Representative (which consent shall not be liable for any unreasonably withheld or delayed), no settlement of any such Claims Third-Party Claim shall alone be determinative of the amount of Damages for which the Parent Indemnified Parties are entitled to indemnification with respect to such Claim. If such Claim is not a Third Party Claim, Parent shall be entitled to immediate satisfaction of such Claim. If the Shareholder Representative does not notify Parent within fifteen (15) business days following receipt of notice of a Claim that is not a Third Party Claim that the Company Shareholders disputes such Claim, such Claim shall be deemed a liability of the Company Shareholders and Losses effected without its prior written consentthe Company Shareholders shall pay the amount of the Claim on demand by Parent, or in the case of any notice in which the amount of the Claim is estimated, on such later date when the amount of the Claim is finally determined. If the Shareholder Representative disputes the Claim in a timely manner as set forth herein, the Shareholder Representative and Parent shall proceed in good faith to negotiate a resolution of the dispute, or, if necessary, to final judgment or order of a court of competent jurisdiction determining the amount of the Damages or by any other means elected by Parent.
(b) If the Company Shareholders seek indemnification under this Article VIII, it shall give a Claim Notice to Parent of the basis of the Claim (i) within a reasonable time after discovery of the facts and (ii) in any event, within the time periods set forth in Section 8.1, provided that the failure to give such notice shall not relieve Parent of any liability hereunder except to the extent that Parent is materially adversely prejudiced by such failure. Parent shall give notice to the Shareholder Representative within fifteen (15) business days after receipt of the notice requested by this Section 8.3 advising whether it (i) acknowledges Parent's obligation to indemnify the Company Shareholders or (ii) disputes the obligation to indemnify the Company's Shareholders. If Parent acknowledges Parent's indemnification obligation with respect to the Claim, such Claim shall be unreasonably withheld; provided that deemed a liability of Parent and Parent shall pay the amount of the Claim on demand by the Shareholder Representative, or in the case of any notice in which the amount of the Claim is estimated, on such later date when the amount of the Claim is finally determined. If Parent disputes the Claim in a timely manner as set forth herein, Parent and the Shareholder Representative shall proceed in good faith to negotiate a resolution of the dispute, or, if the indemnifying party does not assume the defense necessary, to final judgment or prosecution order of a third-party claim as provided above within thirty (30) Days after notice thereof from court of competent jurisdiction determining the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition amount of the indemnified party without the indemnified party’s prior written consent. Whether Damages or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithby any other means elected by Parent.
Appears in 1 contract
Procedures for Indemnification. An (a) If any indemnified party hereunder shall notify receives notice of the indemnifying party, in writing, assertion of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if knownclaim, the amount or an estimate commencement of the amount of the Claims and Losses. In the event of a claim by any third partyProceeding, or if there is the imposition of any claim against penalty or assessment by a third party available by virtue in respect of the circumstances of the Claims and Losseswhich indemnity may be sought hereunder (a “Third Party Claim”), the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such actionintends to seek indemnity hereunder, then the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at provide the indemnifying party’s expenseparty with prompt written notice of the Third Party Claim. The failure by an indemnified party to notify an indemnifying party of a Third Party Claim shall not relieve the indemnifying party of any indemnification responsibility under this ARTICLE 7, unless the indemnifying party can prove that the failure materially prejudiced the ability of the indemnifying party to defend such Third Party Claim.
(b) The indemnified party shall have the right to employ counsel separate from counsel employed by control the indemnifying party in any such action and to participate therein, but the fees and expenses defense or settlement of such Third Party Claim with counsel employed by of its choosing; provided, however, that the indemnified party shall be at its expensenot settle or compromise any Third Party Claim without the indemnifying party’s prior written consent, unless the terms of such settlement or compromise release the indemnified party or the indemnifying party from any and all liability with respect to the Third Party Claim. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty entitled (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without at the indemnifying party’s consentexpense) to participate in (but not control) the defense of any Third Party Claim with its own counsel.
(c) In the event the indemnified party elects not to defend the Third Party Claim, then the indemnifying party may defend such claim at indemnifying party’s sole cost and expense with counsel selected by the indemnifying party, such counsel to be reasonably acceptable to the indemnified party. The In such event, the indemnifying party shall not agree to a settlement of settle or compromise any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party Third Party Claim without the indemnified party’s prior written consent, unless the terms of such settlement or compromise release the indemnified party from any and all liability with respect to the Third Party Claim.
(d) Notwithstanding the foregoing, in the event of a Third Party Claim by which a claim for indemnification is made against Seller pursuant to Section 7.1(a)(iii), Seller shall have the right to control the defense or settlement of such Third Party Claim with counsel of its choosing; provided, however, that Seller shall not settle or compromise any Third Party Claim without Purchaser’s prior written consent, unless the terms of such settlement or compromise release Purchaser and its Affiliates from any and all liability with respect to the Third Party Claim. Whether The indemnifying party shall be entitled (at the indemnifying party’s expense) to participate in (but not control) the defense of any Third Party Claim described in this Section 7.2(d) with its own counsel.
(e) Any indemnifiable claim hereunder that is not a Third Party Claim shall be asserted by the indemnified party by promptly delivering notice thereof (the “Claim Notice”) to the indemnifying party. If the indemnifying party: (i) agrees with the indemnified party with respect to such claim, a memorandum setting forth such agreement shall be prepared and signed by both parties or not (ii) disputes the existence or the amount of such claim, the indemnifying party chooses shall notify the indemnified party in writing (with reasonable specificity) within twenty (20) days following the indemnifying party’s receipt of the Claim Notice (the “Response Notice”) and the parties will negotiate in good faith to resolve such claim for up to thirty (30) days or such other period of time as the parties mutually agree. If the parties should then so defend or prosecute agree with respect to such claim, a memorandum setting forth such agreement shall be prepared and signed by both parties. If no Response Notice is received by the indemnified party within twenty (20) days after the indemnifying party’s receipt of the Claim Notice, the matter shall be deemed undisputed and the indemnifying party shall indemnify the indemnified party for the Damages. If the parties shall cooperate in are unable to agree within the defense or prosecution thereof and shall furnish thirty (30) day negotiation period specified herein, either party can submit such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewithmatter for dispute resolution pursuant to Section 8.4.
Appears in 1 contract
Procedures for Indemnification. An The indemnified party hereunder shall notify the indemnifying party, party in writing, writing promptly after the indemnified party receives notice of any claim or litigation for indemnification, specifying in reasonable detail which the nature of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third indemnified party available by virtue of the circumstances of the Claims and Losses, may seek indemnity from the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to under this Section 4.4. The indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both shall permit the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting to assume the defense of any such actionclaim or litigation. Counsel for the indemnifying party shall conduct the defense of such claim or litigation and shall be approved by the indemnified party, who shall not unreasonably withhold or delay its approval. The indemnified party may participate in such defense at the indemnified party’s own expense. The indemnified party’s failure to give notice as required by this Section 4.4(c) shall not relieve the indemnifying party of its obligation to indemnify the indemnified party under this Section, except to the extent that such failure impairs the indemnifying party’s ability to defend against such claim or litigation. If the indemnifying party does not assume the defense of such claim or litigation within 60 days after the indemnifying party receives written notice of such claim or litigation from the indemnified party, the indemnified party shall have the right to select separate legal may retain its own counsel to assume conduct the defense of any such defense and otherwise participate in such action at claim or litigation. If the indemnifying party’s expense. The indemnified party shall have the right to employ retains its own counsel separate from counsel employed by as a result of such failure, the indemnifying party in any such action and to participate therein, but shall reimburse the fees and indemnified party for expenses of such counsel employed incurred by the indemnified party shall be at its expensein the defense of such claim or litigation. The indemnifying party shall not be liable for any amounts paid in settlement of any such Claims and Losses effected without its prior written consent, claim or litigation unless the indemnifying party consents in writing to such settlement (which consent shall not be unreasonably withheld; provided that if the withheld or delayed). The indemnifying party does not assume party, in the defense of any such claim or prosecution litigation, shall not, except with the consent of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, consent to entry of any judgment, or enter into any settlement, that does not unconditionally release the indemnified party may settle from all liability and costs with respect to such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithlitigation.
Appears in 1 contract
Sources: Subservicing Agreement (Long Beach Mortgage Loan Trust 2006-Wl2)
Procedures for Indemnification. An indemnified Each party hereunder entitled to indemnification under this Section 3 (the “Indemnified Party”), shall notify give notice to the indemnifying party, in writing, party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice as to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there which indemnity may be a conflict between sought, and shall permit the positions of such parties in conducting Indemnifying Party to assume the defense of any such actionclaim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense. A failure to give notice in accordance with this Section 3(c) shall in no case prejudice the rights of the Indemnified Party under this Agreement unless the Indemnifying Party shall be materially prejudiced by such failure and then only to the extent of such prejudice. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof, the indemnified party giving of a release from all liability in respect to such claim or litigation. If any such Indemnified Party shall have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, the Indemnifying Party shall not have the right to select separate legal counsel to assume such the defense and otherwise participate in of such action at on behalf of such Indemnified Party and will reimburse such Indemnified Party and any person controlling such Indemnified Party for the indemnifying party’s expense. 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 therein, but the reasonable fees and expenses of such any counsel employed retained by the indemnified party Indemnified Party, it being understood that the Indemnifying Party shall be at its expense. The indemnifying party shall not not, in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for any settlement the reasonable fees and expenses of any more than one separate firm of attorneys for such Claims and Losses effected without its prior written consentIndemnified Party or controlling person, which firm shall not be unreasonably withheld; provided that if designated in writing by the indemnifying party does not assume Indemnified Party to the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithIndemnifying Party.
Appears in 1 contract
Procedures for Indemnification. An indemnified (a) Whenever a claim shall arise for indemnification under this Section 7, the party hereunder entitled to indemnification (the “Indemnified Party”), shall notify the indemnifying partynotify, in writing, the party from whom indemnification is sought (the “Indemnifying Party”) of any such claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if when known, the amount or an estimate of facts constituting the amount of the Claims and Lossesbasis for such claim. In the event of any such claim for indemnification resulting from or in connection with a claim or Action by any a third party, or if there is any claim against a third party available by virtue of ; the circumstances of the Claims and Losses, the indemnifying party Indemnifying Party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its sole cost and expense; provided, however, if the defendants in that no settlement of any such action include both claim or Action shall be made without the indemnifying party prior written consent of the Indemnified Party (which consent may not be unreasonably withheld) unless such settlement fully and unconditionally releases the indemnified party and Indemnified Party from all further liability or obligation on the part of the Indemnified Party in connection with such parties claim or Action, in which case such consent shall have reasonable concluded that there may not be a conflict between the positions of such parties in conducting required. If an Indemnifying Party assumes the defense of any such actionclaim or Action, the indemnified party Indemnifying Party shall have the right be entitled to select separate legal counsel to assume such and take all steps necessary in the settlement or defense and otherwise thereof; provided, however, that the Indemnified Party may, at its own expense, participate in such action at the indemnifying party’s expense. 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 therein, but Action with the fees and expenses counsel of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consentchoice. Whether or not the indemnifying party chooses to so defend Indemnifying Party assumes the defense of any claim or prosecute Action, the Indemnified Party shall not compromise or settle such claimclaim or Action without the prior written consent of the Indemnifying Party (which consent may not be unreasonably withheld).
(b) The Indemnified Party, both parties the Indemnifying Party and their respective legal counsel shall cooperate in the compromise of, or defense against, any claim or prosecution thereof Action by a third party; provided that the Indemnified Party shall be entitled to participate in the defense and to employ counsel, at the Indemnified Party’s expense, to assist therein. The Indemnified Party may not settle or compromise any claim over the objection of the Indemnifying Party, except that the Indemnified Party may settle any claim with respect to which it waives its indemnification under this Agreement. If the Indemnifying Party chooses to defend any such claim, the Indemnified Party shall furnish make available to the Indemnifying Party any books, records or other documents or personnel within its control that are reasonably necessary or appropriate for such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewithdefense.
Appears in 1 contract
Procedures for Indemnification. An Promptly after receipt by an indemnified party hereunder under this Section 6 of notice of any claim, the commencement of any action, or the discovery of any facts or circumstances which could reasonably result in, if not attended to, a claim or commencement of any action, the indemnified party shall, if a claim in respect thereof is to be or may be made against the indemnifying party under this Section 6, notify the indemnifying party in writing of the claim, the commencement of that action or state of facts or circumstances; provided that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to the indemnified party. If any such claim shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate jointly with the indemnified party in the indemnified party's defense, settlement or other disposition of any such claim. With respect to any such claim relating solely to the payment of money damages and which will not result in the indemnified party's becoming subject to injunctive or other relief or otherwise adversely affect the business of the indemnified party in any manner, and as to which the indemnifying party shall have acknowledged in writing the obligation to indemnify the indemnified party hereunder, the indemnifying party shall have the sole right to defend, settle or otherwise dispose of such claim, on such terms as the indemnifying party, in writingits sole discretion, of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expenseshall deem appropriate; provided, however, if the defendants in any such action include both that the indemnifying party and shall obtain the written consent of the indemnified party, which shall not be unreasonably withheld, prior to ceasing to defend, settling or otherwise disposing of any such claim if as a result thereof the indemnified party would become subject to injunctive or other equitable relief or the business of the indemnified party would be adversely affected in any manner; and provided, further, that if the indemnified party has elected to be represented by separate counsel pursuant to the proviso to the following sentence, such parties settlement or compromise shall have reasonable concluded that there may be a conflict between effected only with the positions consent of such parties in conducting the indemnified party, which consent shall not be unreasonably withheld. After notice from the indemnifying party to the indemnified party of its election to assume the defense of any such claim or action, the indemnifying party shall not be liable to the indemnified party shall have under this Section 6 for any legal or other expenses subsequently incurred by the right to select separate legal counsel to assume such indemnified party in connection with the defense and otherwise participate in such action at thereof other than reasonable costs of investigation; provided, however, that the indemnifying party’s expense. The indemnified party shall have the right to employ counsel to represent it if, in the indemnified party's reasonable judgment, it is advisable for the indemnified party to be represented by separate from counsel employed by the indemnifying party counsel, and in any such action and to participate therein, but that event the fees and expenses of such separate counsel employed shall be paid by the indemnified party shall be at its expenseindemnifying party. The indemnifying party shall not parties each agree to render to the other parties such assistance as may reasonably be liable for any settlement requested in order to insure the proper and adequate defense of any such Claims and Losses effected without its prior written consentclaim or proceeding. Notwithstanding the preceding, which (i) Buyer shall not be unreasonably withheld; provided that if make a claim for indemnity against Seller or Stockholder under Section 6.1(ii) unless and until the indemnifying party does not assume aggregate amount of such claims exceeds $50,000, whereupon Buyer may claim indemnification for the defense amounts of such claims or prosecution of a third-party claim as provided above within thirty any portion thereof exceeding $25,000 and (30ii) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party Seller or Stockholder shall not agree to make a settlement claim for indemnity against Buyer under Section 6.2(i) unless and until the aggregate amount of such claims exceeds $50,000, whereupon Seller or Stockholder may claim indemnification for the amounts of such claims or any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties shall cooperate in the defense or prosecution portion 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 therewithexceeding $25,000.
Appears in 1 contract
Sources: Asset Purchase Agreement (Evenflo & Spalding Holdings Corp)
Procedures for Indemnification. An indemnified The Buyer Indemnitees and Seller Indemnitees shall be referred to in this Section 10.4 as the “Indemnitees”. Indemnitees shall give the party hereunder shall notify against whom indemnification is sought pursuant to this Section 10 (the indemnifying party, in writing, “Indemnifying Person”) prompt notice of any written claim, demand, assessment, action, suit or Proceeding to which the indemnity set forth in this Section 10 applies. If the document evidencing such claim for indemnificationor demand is a court pleading, specifying in reasonable detail the nature Indemnitee shall give such notice, including a copy of such pleading, within seven (7) days of receipt of such pleading, otherwise, the Indemnitee shall give such notice within thirty (30) days of the Claims and Losses and, if known, date it receives written notice of such claim. Failure to give timely notice of a matter which may give rise to an indemnification claim shall not affect the amount or an estimate rights of the amount of Indemnitee to collect such Loss from the Claims and LossesIndemnifying Person so long as such failure to so notify does not materially adversely affect the Indemnifying Person’s ability to defend such Loss against a third party. In If the event Indemnitee’s request for indemnification arises from the claim of a claim by any third party, or if there is any claim against a third party available by virtue the Indemnifying Person may, at its option, assume control of the circumstances defense of any such claim, or any litigation resulting from such claim so long as (a) the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt Indemnifying Person gives written notice to indemnified the Indemnitee within twenty (20) days after the Indemnitee has given notice of the third party claim that the Indemnifying Person will indemnify the Indemnitee from and against the entirety of any and all Losses the Indemnitee may suffer resulting from, arising out of, relating to, in the nature of, or caused by the third party claim, (b) the Indemnifying Person provides the Indemnitee with evidence reasonably acceptable to the Indemnitee that the Indemnifying Person will have adequate financial resources to defend against the third party claim and fulfill its indemnification obligations hereunder, (c) the third party claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnitee, (d) the Indemnitee has not been advised in writing by counsel that an actual or potential conflict exists between the Indemnitee and the Indemnifying Person in connection with the defense of the third party claim, (e) settlement of, an adverse judgment with respect to or the Indemnifying Person’s conduct of the defense of the third party claim is not, in the good faith judgment of the Indemnitee, likely to be adverse to the Indemnitee’s reputation or continuing Business interests (including its relationships with current or potential customers, suppliers or other parties material to the employment conduct of its Business) and (f) the Indemnifying Person conducts the defense of the third party claim actively and diligently. The Indemnitee may retain separate co-counsel or accountants, at its sole cost and expenseexpense and participate in the defense of the third party claim; provided, however, if that the defendants Indemnifying Person will pay the reasonable fees and expenses of separate co-counsel retained by the Indemnitee that are incurred prior to Indemnifying Person’s assumption of control of the defense of the third party claim. Failure by the Indemnifying Person to notify the Indemnitee of its election to defend a complaint by a third party within twenty (20) days shall be a waiver by the Indemnifying Person of its right to respond to such complaint and within thirty (30) days after notice thereof shall be a waiver by the Indemnifying Person of its right to assume control of the defense of such claim or action. If the Indemnifying Person assumes control of the defense of such claim or litigation resulting therefrom, the Indemnifying Person shall take all reasonable steps necessary in the defense or settlement of such claim or litigation resulting therefrom. The Indemnifying Person shall not, in the defense of such claim or litigation, consent to entry of any judgment against any Indemnitee or enter into any settlement, involving any Indemnitee, except in either case with written consent of the Indemnitee, which consent shall not be unreasonably withheld or delayed. The Indemnitee shall furnish the Indemnifying Person in reasonable detail all information the Indemnitee may have with respect to any such action include both third-party claim and shall make available to the indemnifying party Indemnifying Person and its representatives all records and other similar materials which are reasonably required in the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions defense of such parties third-party claim and shall otherwise cooperate with and assist the Indemnifying Person in conducting the defense of such third-party claim. If the Indemnifying Person does not assume control of the defense of any such actionthird-party claim or litigation resulting therefrom, the indemnified party shall have the right to select separate legal counsel to assume Indemnitee may defend against such defense and otherwise participate claim or litigation in such action at manner as it may reasonably deem appropriate, and the indemnifying party’s expenseIndemnifying Person shall indemnify the Indemnitee from any Loss indemnifiable under Section 10 incurred in connection therewith. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party Indemnifying Person shall not be liable obligated to the Indemnitee for any settlement or consent to a stay of judgment made by any Indemnitee if such Claims and Losses effected settlement or consent is entered into without its the prior written consent, consent of the Indemnifying Person which consent shall not be unreasonably withheld; provided withheld or delayed. If the Indemnitee should have a claim against the Indemnifying Person that if the indemnifying party does not assume involve a third party claim, the defense Indemnitee shall deliver a notice of such claim to the Indemnifying Person. If the Indemnifying Person notifies the Indemnitee that it does not dispute the claim described in such notice or prosecution of a third-party claim as provided above fails to notify the Indemnitee within thirty (30) Days days after delivery of such notice thereof from by the indemnified partyIndemnitee whether the Indemnifying Person disputes the claim described in such notice, the indemnified party may settle such claim without Loss in the indemnifying partyamount specified in the Indemnitee’s consent. The indemnifying party shall not agree to notice will be conclusively deemed a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition liability of the indemnified party without Indemnifying Person and the indemnified party’s prior written consentIndemnifying Person shall pay the amount of such Loss to the Indemnitee on demand. Whether or not If the indemnifying party chooses Indemnifying Person has timely disputed its liability with respect to so defend or prosecute such claim, both parties shall cooperate a senior executive of each of the Indemnifying Person and the Indemnitee with full negotiating authority will proceed in the defense or prosecution thereof and shall furnish good faith to negotiate a resolution of such records, information and testimonydispute, and attend if not resolved through the negotiations of such conferencesexecutives within sixty (60) days after the delivery of the Indemnitee’s notice of such claim, discovery proceedings, hearings, trials such dispute shall be resolved fully and appeals, as may be reasonably requested in connection therewithfinally by a court of competent jurisdiction.
Appears in 1 contract
Sources: Asset Purchase Agreement (Coolbrands International Inc)
Procedures for Indemnification. An indemnified (a) No Seller Indemnifying Party shall be liable for any claim for indemnification under this Article VIII unless written notice of a claim for indemnification is delivered by the Purchaser Indemnified Party seeking indemnification to the Seller Indemnifying Party from whom indemnification is sought prior to the expiration of any applicable survival period set forth in Section 8.01 (in which event the claim shall survive until finally and fully resolved). If any third party hereunder notifies the Purchaser Indemnified Party with respect to any matter which may give rise to a claim for indemnification (a “Third Party Claim”) against the Seller Indemnifying Party under this Article VIII, then the Purchaser Indemnified Party shall notify the indemnifying party, Seller Indemnifying Party reasonably promptly thereof in writing; provided, that no delay on the part of the Purchaser Indemnified Party in notifying the Seller Indemnifying Party shall relieve the Seller Indemnifying Party from any claim for indemnification, specifying in obligation hereunder except to the extent that the Seller Indemnifying Party is actually and materially prejudiced thereby. All notices given pursuant to this Section 8.05(a) shall describe with reasonable detail specificity the nature of the Claims and Losses andclaim, if known, the amount or an estimate of the amount of the Claims claim (to the extent then known) and Losses. In the event basis of the Purchaser Indemnified Party’s claim for indemnification.
(b) Following receipt of notice in accordance with Section 8.05(a) (other than a notice of a Third Party Claim against the Purchaser Indemnified Party, in which case Section 8.05(c) below shall apply), the Seller Indemnifying Party shall have thirty (30) days from the date it receives such notice (the “Dispute Period”) to make such investigation of the claim as the Seller Indemnifying Party deems necessary or desirable. For purposes of such investigation, the Purchaser Indemnified Party shall make available to the Seller Indemnifying Party all the material information related to such claim relied upon by or in possession or control of, the Purchaser Indemnified Party; provided, that such Purchaser Indemnified Party shall not be required to violate any third partyGovernmental Order or any applicable Law to which it is subject or to waive any attorney-client privilege or work product doctrine which any of them may possess or that may otherwise apply to such information. If the Seller Indemnifying Party disagrees with the validity or amount of all or a portion of such claim made by the Purchaser Indemnified Party, the Seller Indemnifying Party shall deliver to the Purchaser Indemnified Party written notice thereof (the “Dispute Notice”) prior to the expiration of the Dispute Period. If no Dispute Notice is received by the Purchaser Indemnified Party within the Dispute Period or the Seller Indemnifying Party provides notice that it does not have a dispute with respect to such claim, such claim shall be deemed approved and consented to by the Seller Indemnifying Party (such claim, an “Approved Indemnification Claim”). If a Dispute Notice is received by the Purchaser Indemnified Party within the Dispute Period and the Purchaser Indemnified Party and the Seller Indemnifying Party do not agree to the validity and/or amount of such disputed claim, no payment shall be made until such disputed claim is resolved, whether by adjudication of such matter, agreement between the Purchaser Indemnified Party and the Seller Indemnifying Party, or if there is otherwise (and upon any such resolution, such claim against shall be deemed to be an Approved Indemnification Claim). Each Approved Indemnification Claim shall be paid by Sellers or Parent and Purchaser, as applicable, no later than five (5) Business Days after the date on which the subject claim became an Approved Indemnification Claim, in each case by wire transfer of immediately available funds to the account designated in writing by the party entitled to such payment.
(c) After the Purchaser Indemnified Party has given notice of a third party available by virtue of Third Party Claim to the circumstances of the Claims and LossesSeller Indemnifying Party pursuant to Section 8.05(a), the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountantsSeller Indemnifying Party may, at its cost election, undertake and conduct the defense of such Third Party Claim at its own expense; provided, howeverthat the Seller Indemnifying Party fully acknowledges in writing its indemnification obligations to the Purchaser Indemnified Party. In such case, if the defendants Purchaser Indemnified Party may continue to participate in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions defense of such parties in conducting Third Party Claim. If the Seller Indemnifying Party assumes the defense of any Third Party Claim, and unless (i) such actionsettlement or consent to judgment does not impose or purport to impose any obligation or restriction on such Purchaser Indemnified Party or any of its Affiliates or any action or restrictions upon the conduct of the businesses of the Purchaser Indemnified Party or any of its Affiliates, (ii) the Purchaser Indemnified Party receives a full release of and from any other claims that may be made against the Purchaser Indemnified Party in connection with such Third Party Claim, (iii) the sole relief provided is monetary damages that are paid in full by the Seller Indemnifying Party, and (iv) there is no finding or admission of any violation by the Purchaser Indemnified Party of any applicable Law or any rights of any Person, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party Seller Indemnifying Party shall not be liable for any settlement settle or consent to judgment with respect to such Third Party Claim without the written consent of any such Claims and Losses effected without its prior written consentthe Purchaser Indemnified Party, which consent shall not be unreasonably withheld; provided , conditioned or delayed. Notwithstanding anything to the contrary, the Seller Indemnifying Party shall not be entitled to assume the administration and defense of any Third Party Claim that if involves any Material Customer or Material Supplier or if: (i) the indemnifying party does not Seller Indemnifying Party has failed to assume the defense or prosecution of a third-party claim as provided above such Third Party Claim within thirty (30) Days after days of the Purchaser Indemnified Party’s delivery of notice of such Third Party Claim to the Seller Indemnifying Party, (ii) the aggregate amount reasonably expected to be incurred in connection with such Third Party Claim and all other outstanding claims on the RWI Indemnity Escrow Funds exceeds 150% of the remaining amount of the RWI Indemnity Escrow Funds, (iii) such Third Party Claim involves criminal or quasi-criminal allegations, (iv) the Third Party Claim includes a claim for injunctive relief, or (v) any Seller is the Seller Indemnifying Party and (A) Purchaser or the Insurer is required to assume the defense of the Third Party Claim pursuant to the terms thereof from or (B) any Seller’s assumption of the indemnified party, defense of the indemnified party may settle such claim without Third Party Claim would reasonably be expected to cause a Purchaser Indemnified Party to lose coverage under the indemnifying party’s consentR&W Insurance Policy. The indemnifying party Purchaser Indemnified Party and the Seller Indemnifying Party shall not agree render to a settlement each other such assistance as may reasonably be required of each other in order to ensure proper and adequate defense of any Claims and Losses which provides for any relief other than Third Party Claim subject to this Section 8.05. To the payment of monetary damages extent that the Purchaser Indemnified Party or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or Seller Indemnifying Party does not the indemnifying party chooses to so defend or prosecute such claim, both parties shall cooperate participate in the defense of a particular Third Party Claim, the Person so proceeding with such Third Party Claim shall keep the other Person informed of all material developments and events relating to such Third Party Claim. No Purchaser Indemnified Party shall settle or prosecution thereof and consent to judgment with respect to any Third Party Claim for which the Seller Indemnifying Party has provided a written acknowledgement of its indemnification obligations to the Purchaser Indemnified Party without the written consent of the Seller Indemnifying Party, which consent shall furnish such recordsnot be unreasonably withheld, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewithconditioned or delayed.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Local Bounti Corporation/De)
Procedures for Indemnification. An Promptly after receipt by an indemnified party hereunder of notice of the commencement of any action involving a claim referred to in this Article III, such indemnified party shall, if a claim pursuant to this Article III in respect thereof is made against an indemnifying party, give written notice to the latter of the commencement of such action. The failure of any indemnified party to notify an indemnifying party of any such action shall notify not (unless such failure shall have materially prejudiced the indemnifying party through the forfeiture of substantive rights or defenses) relieve the indemnifying party from any liability in respect of such action that it may have to such indemnified party hereunder. In case any such action is brought against an indemnified party, the indemnifying party shall be entitled to participate in and to assume the defense of the claims in any such action that are subject or potentially subject to indemnification hereunder, jointly with any other indemnifying party similarly notified to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, and after written notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be responsible for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof; provided that, if any indemnified party shall have reasonably concluded, based on the advice of counsel, that there are one or more legal or equitable defenses available to such indemnified party which are additional to or conflict with those available to the indemnifying party, in writing, of any or that such claim for indemnification, specifying in reasonable detail or litigation involves or could have an effect upon matters beyond the nature scope of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Lossesindemnity provided hereunder, the indemnifying party may shall not have the right to assume the defense or the prosecution thereof by prompt written notice to of such action on behalf of such indemnified party including the employment of counsel or accountantswithout such indemnified party’s prior written consent (but, at its cost and expense; providedwithout such consent, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal participate therein with counsel to assume of its choice) and such defense and otherwise participate in indemnifying party shall reimburse such action at the indemnifying party’s expense. 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 therein, but for that portion of the fees and expenses of such any counsel employed retained by the indemnified party shall be at its expensewhich is reasonably related to the matters covered by the indemnity provided hereunder. The If the indemnifying party is not entitled to, or elects not to, assume the defense of a claim, (i) it shall not be liable obligated to pay the fees and expenses of more than one counsel for any settlement all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such Claims indemnified party and Losses effected any other of such indemnified parties with respect to such claim, and (ii) no indemnified party shall, without its the prior written consentconsent of the indemnifying party, settle or compromise or consent to the entry of any judgment with respect to any action in respect of which shall not indemnification or contribution could be unreasonably withheld; provided that if sought under this Article III unless such consent includes a waiver by such indemnified party of its right to pursue indemnification from the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithunder this Article III.
Appears in 1 contract
Sources: Registration Rights Agreement (Columbia Property Trust Operating Partnership, L.P.)
Procedures for Indemnification. An indemnified party hereunder shall notify (a) If the indemnifying party, in writing, of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of Stockholders have become obligated to a claim by any third partyParent Indemnitee pursuant to Section 15.2 hereof, or if there any suit, action, investigation, claim or proceeding is any claim against begun, made or instituted as a third party available by virtue result of which the circumstances of the Claims and LossesStockholders may become obligated to a Parent Indemnitee hereunder, the indemnifying party may assume the defense or the prosecution thereof by prompt such Parent Indemnitee shall give written notice to indemnified party including the employment of counsel or accountants, at its cost and expenseStockholders’ Agent; provided, however, if that the defendants failure of the Parent Indemnitee to give prompt notice to the Stockholders’ Agent shall not release the Stockholders from their indemnification obligations hereunder, except to the extent the Stockholders shall have been materially prejudiced by such failure. Stockholders, through the Stockholders’ Agent, agree to defend, contest or otherwise protect the Parent Indemnitee against any such suit, action, investigation, claim or proceeding at the sole cost and expense of the Stockholders. The Parent Indemnitee shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of the Parent Indemnitee’s choice and shall in any event cooperate with and assist the Stockholders and Stockholders’ Agent to the extent reasonably possible. Neither the Stockholders nor the Stockholders’ Agent shall compromise or settle any such action include both suit, action, investigation, claim or proceeding unless (x) such compromise or settlement is on exclusively monetary terms and shall be paid entirely by the indemnifying party Stockholders (from the Indemnity Escrow Fund), and the indemnified party and Parent Indemnitee receives an unconditional release in such parties compromise or settlement or (y) the Parent Indemnitee shall have reasonable concluded that there may be a conflict between consented in writing to the positions terms of such parties in conducting compromise settlement, which consent shall not unreasonably withheld, conditioned or delayed. If the defense of any Stockholders, through the Stockholders’ Agent, fail timely to defend, contest or otherwise protect against such suit, action, investigation, claim or proceeding, the indemnified party Parent Indemnitee shall have the right to select separate legal counsel do so, including, without limitation, the right to assume make a compromise or settlement thereof (with the prior consent of the Stockholders’ Agent, not to be unreasonably withheld, conditioned or delayed), and the Parent Indemnitee shall be entitled to recover the entire cost thereof from the Stockholders (from the Indemnity Escrow Fund), including, without limitation, reasonable attorneys’ fees, disbursements and amounts paid as the result of such defense suit, action, investigation, claim or proceeding.
(b) If Parent and Merger Sub have become obligated to a Stockholder Indemnitee pursuant to Section 15.3 hereof, or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which Parent and Merger Sub may become obligated to a Stockholder Indemnitee hereunder, the Stockholders’ Agent shall give written notice to Parent; provided, however, that the failure of the Stockholders’ Agent to give prompt notice to Parent shall not release Parent from its indemnification obligations hereunder, except to the extent Parent shall have been materially prejudiced by such failure. Parent agrees to defend, contest or otherwise participate in protect the Stockholder Indemnitee against any such action suit, action, investigation, claim or proceeding at the indemnifying party’s its sole cost and expense. The indemnified party Stockholder Indemnitee, through the Stockholders’ Agent, shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of the Stockholders’ Agent’s choice and shall in any event cooperate with and assist Parent to the extent reasonably possible. Parent shall not compromise or settle any such suit, action, investigation, claim or proceeding unless (x) such compromise or settlement is on exclusively monetary terms and shall be paid entirely by Parent and the Stockholder Indemnitee receives an unconditional release in such compromise or settlement or (y) the Stockholder Indemnitee, through the Stockholders’ Agent, shall have consented in writing to the terms of such compromise settlement, which consent shall not unreasonably withheld, conditioned or delayed. If Parent fails timely to defend, contest or otherwise protect against such suit, action, investigation, claim or proceeding, the Stockholder Indemnitee, through the Stockholders’ Agent shall have the right to employ counsel separate do so, including, without limitation, the right to make a compromise or settlement thereof (with the prior consent of the Parent, not to be unreasonably withheld, conditioned or delayed), and the Stockholder Indemnitee, through the Stockholders’ Agent, shall be entitled to recover the entire cost thereof from counsel employed Parent, including, without limitation, reasonable attorneys’ fees, disbursements and amounts paid as the result of such suit, action, investigation, claim or proceeding.
(c) Notwithstanding anything contained herein to the contrary, to the extent that a Stockholders’ Agent reasonably believes that the Surviving Corporation has insurance coverage applicable to Losses for which a claim for indemnification in excess of $75,000 has been made by a Parent Indemnitee hereunder, he shall so notify the claiming Parent Indemnitee in writing, and the Surviving Corporation shall use its commercially reasonable efforts to file a claim with respect to such Losses. If any such insurance claim is (i) accepted, and if requested by the indemnifying party Stockholders’ Agent in any writing, the Surviving Corporation shall assign the right to receive ninety percent (90%) of all insurance proceeds under such action accepted claim to the Stockholders’ Agent, for the benefit of the Stockholders or (ii) denied (in whole or in part), and to participate therein, but the fees and expenses of such counsel employed if requested by the Stockholders’ Agent in writing, the Surviving Corporation will, at the request of the Stockholders’ Agent, assign the right to ninety percent (90%) of any recovery ultimately received with respect to such claim and its other rights under such denied claim to the Stockholders’ Agent, for the benefit of the Stockholders. During the period when any insurance claim under this Section 15.4(c) is pending, the indemnified party claim covered by such insurance claim shall be at its expensepaid in accordance with, and subject to the limitations of, Section 15.4(a) above. The indemnifying party To the extent that any indemnification payments made pursuant to this Section 15.4(c) are recovered pursuant to an insurance claim, such payments shall not be liable included for purposes of calculating the amounts available pursuant to either the Threshold Amount or any settlement of applicable indemnification cap.
(d) Notwithstanding anything contained herein to the contrary, if Parent seeks to settle any claim, lawsuit, other proceeding or other disagreement or dispute with respect to a matter that has been accrued for on the Closing Balance Sheet and the Parent Indemnitees intend to seek indemnification for Losses relating thereto or arising therefrom,:
(i) Parent shall use commercially reasonable efforts to settle such Claims claim, lawsuit, other proceeding or other disagreement or dispute for an amount equal to or less than the amount accrued with respect to such matter on the Closing Balance Sheet;
(ii) if Parent does not have an ongoing relationship, or Parent has an ongoing relationship that is, in Parent’s reasonable discretion, not material, with the party with which it proposes to settle any claim, lawsuit, other proceeding or other disagreement or dispute with respect to a matter that has been accrued for on the Closing Balance Sheet, Parent must make a claim for indemnification under Section 15.2 hereof with respect to such matter and Losses effected without its prior written consent, which shall not be unreasonably withheldentitled to settle such matter prior thereto; provided and
(iii) if Parent has an ongoing relationship that if is, in Parent’s reasonable discretion, material with the indemnifying party does not assume with which it proposes to settle any claim, lawsuit, other proceeding or other disagreement or dispute with respect to a matter that has been accrued for on the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified partyClosing Balance Sheet, the indemnified party Parent may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides claim, lawsuit, other proceeding or other disagreement or dispute for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition an amount in excess of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses applicable reserve (subject to so defend or prosecute clause (d)(i) above) and Parent may seek indemnification under Section 15.2 hereof with respect to any Losses relating to such claim, both parties 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 therewithmatter.
Appears in 1 contract
Procedures for Indemnification. An indemnified party hereunder shall notify the indemnifying party, in writing, of (a) In order for any Indemnified Party to be entitled to make a claim for indemnificationindemnification under this Article 10, specifying such Indemnified Party shall deliver a written notice (an “Indemnification Claim Notice”) to the Indemnifying Party, as promptly as reasonably practicable after it acquires knowledge of the fact, event or circumstance giving rise to a claim for Losses pursuant to this Article 10. Each Indemnification Claim Notice shall specify in reasonable detail the nature of of, the Claims facts, circumstances and Losses and, if known, the amount or an a good faith estimate (only to the extent ascertainable) of the amount potential Losses against which such Indemnified Party seeks indemnification for, such claim asserted, and the provisions of the Claims and Losses. In the event of a this Agreement upon which such claim by any third party, or if there for indemnification is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expensemade; provided, however, if that any failure by such Indemnified Party to give such prompt Indemnification Claim Notice shall not relieve the defendants Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party is actually and materially prejudiced thereby. After delivery of an Indemnification Claim Notice to the Indemnifying Party, (i) the Indemnified Party which has provided such Indemnification Claim Notice shall, upon written request from the Indemnifying Party, supply and make available to the Indemnifying Party and its Representatives (at the Indemnifying Party’s cost and expense) all relevant information in any its or its Affiliates’ possession relating to the claim reasonably requested by the Indemnifying Party (except to the extent that such action include both would result in a loss of attorney-client privilege; provided, that such Indemnified Party shall use its commercially reasonable efforts to provide such information in such format to the indemnifying party Indemnifying Party, or on an outside counsel only basis or in such other manner which would not result in the loss of such attorney-client privilege) and (ii) the indemnified party Indemnified Party shall, and shall cause its Representatives, to (A) be reasonably available to the Indemnifying Party and its Representatives (at the Indemnifying Party’s cost and expense) during normal business hours to discuss such parties shall have claim, (B) render to the Indemnifying Party and its Representatives such assistance as may reasonably be requested, (C) provide reasonable concluded access to such properties, facilities, books, records, accountant work papers and other documents or information in their possession or that there may be reasonably obtained as the Indemnifying Party and/or its Representatives may reasonably require (at the Indemnifying Party’s cost and expense) (provided, that the accountants of the Indemnified Party shall not be obligated to make any working papers available to the Indemnifying Party or its Representatives unless and until such Party or such Representative, as applicable, has signed a conflict between customary confidentiality and hold harmless agreement relating to such access to working papers in form and substance reasonably acceptable to such accountants), and (D) otherwise cooperate with the positions Indemnifying Party and its Representatives in good faith (at the Indemnifying Party’s cost and expense). Without limiting the foregoing, such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party or its Representatives of books, records and other documents and information which are actually and reasonably relevant to such parties in conducting the defense claim. Upon becoming aware of any such actionclaim for indemnification under this Article 10, the indemnified party Indemnifying Party shall have not take any steps which might reasonably be expected to damage the right commercial interests of the Indemnified Party or its Affiliates without prior approval of the Indemnified Party.
(b) Any claim by an Indemnified Party on account of a Loss which does not result from a Third-Party Claim (a “Direct Claim”) shall be asserted by the Indemnified Party by delivering an Indemnification Claim Notice with respect to select separate legal counsel such Direct Claim to assume the Indemnifying Party promptly; provided, however, that any failure by such defense Indemnified Party to give such prompt Indemnification Claim Notice shall not relieve the Indemnifying Party of its indemnification obligations, except and otherwise participate in such action at only to the indemnifying party’s expenseextent that the Indemnifying Party is actually and materially prejudiced thereby. The indemnified party Indemnified Party shall have allow the right Indemnifying Party and its Representatives to employ counsel separate from counsel employed by investigate the indemnifying party in any such action matter or circumstance alleged to give rise to the Direct Claim, and whether and to participate therein, but what extent any amount is payable in respect of the fees Direct Claim and expenses of such counsel employed by the indemnified party shall be at its expenseIndemnified Party as provided in Section 10.6(a). The indemnifying party Indemnifying Party may, [**] receipt of an Indemnification Claim Notice with respect to such Direct Claim, deliver to the Indemnified Party a written response disputing such claim, which response must state in reasonable detail the reasons why the Indemnifying Party disputes such claim, together with reasonable supporting detail. [**].
(c) Save to the extent to which such Direct Claim has previously been satisfied, settled or withdrawn, any Direct Claim by an Indemnified Party shall not be liable for any settlement enforceable against the Indemnifying Party and shall be deemed to have been withdrawn unless (except as agreed by the Parties otherwise) proceedings in respect of such claim are commenced, subject to Section 10.6(d), by the Indemnified Party [**] of service of notice of any dispute by the Indemnifying Party pursuant to Section 10.6(b).
(d) Where any Direct Claim by an Indemnified Party relates to a Loss which, at the time that such Claims and Losses effected without its prior written consentclaim is notified to the Indemnifying Party is a contingent liability, which the Indemnifying Party shall not be unreasonably withheld; provided that if under any obligation to make any payment to an Indemnified Party in respect thereof and unless and until such time as the indemnifying party does not assume contingent liability ceases to be contingent and becomes actual and is due and payable. If an Indemnified Party has issued a notice in respect of such Direct Claim in accordance with Section 10.6(b) before the defense or prosecution expiry of the relevant time periods for making such a third-party claim as provided above within thirty (30) Days after notice thereof from against the indemnified partyrelevant Indemnifying Party set out in Section 10.1, the indemnified party may settle such claim without [**] in Section 10.6(c) shall be deemed to commence upon the indemnifying party’s consent. The indemnifying party shall not agree date which the liability ceases to a settlement of any Claims be contingent and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties shall cooperate in the defense or prosecution thereof becomes an actual liability and shall furnish such records, information is due and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewithpayable.
Appears in 1 contract
Procedures for Indemnification. An Promptly after receipt by an indemnified party hereunder under this Section 9 of notice of any Claim, the commencement of any Action, or the discovery of any facts or circumstances which could reasonably result in, if not attended to, a Claim or commencement of any Action, the indemnified party shall, if a Claim in respect thereof is to be or may be made against the indemnifying party under this Section 9, notify the indemnifying party in writing of the Claim, the commencement of that Action or state of facts of circumstances; provided that, the failure to notify the indemnifying party shall not relieve it from any Liability which it may have to the indemnified party, except to the extent it is actually prejudiced as a result of such delay. If any such Claim shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate at its cost and expense jointly with the indemnified party in the indemnified party's defense, settlement or other disposition of any such Claim. With respect to any such Claim relating solely to the payment of money damages and which will not result in the indemnified party's becoming subject to injunctive or other relief or otherwise materially adversely affect the business of the indemnified party in any manner, and as to which the indemnifying party shall have acknowledged in writing the obligation to indemnify the indemnified party hereunder, the indemnifying party shall have the sole right to defend, settle or otherwise dispose of such claim on such terms as the indemnifying party, in writingits sole discretion, shall deem appropriate; provided, however that the indemnifying party shall obtain the written consent of the indemnified party, which shall not be unreasonably withheld, prior to ceasing to defend, settling or otherwise disposing of any such claim for indemnification, specifying in reasonable detail if as a result thereof the nature indemnified party would become subject to injunctive or other equitable relief or the business of the Claims indemnified party would be materially adversely affected in any manner; and Losses andprovided, further, that if knownthe indemnified party has elected to be represented by separate counsel pursuant to the proviso to the following sentence, such settlement or compromise shall be effected only with the amount or an estimate consent of the amount of the Claims and Losses. In the event of a claim by any third indemnified party, which consent shall not be unreasonably withheld. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or if there is any claim against a third party available by virtue of the circumstances of the Claims and Lossesaction, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice shall not be liable to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of under this Section 9 for any such action, legal or other expenses subsequently incurred by the indemnified party shall have in connection with the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expensethereof. The indemnified party shall have the right to employ counsel to represent it if, in the indemnified party's reasonable judgment, it is advisable for the indemnified party to be represented by separate from counsel employed by the indemnifying party counsel, and in any such action and to participate therein, but that event the fees and expenses of such separate counsel employed shall be paid by the indemnified party shall be at its expenseparty. The indemnifying party shall not parties each agree to render to the other parties such assistance as may reasonably be liable for any settlement requested in order to insure the proper and adequate defense of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense claim or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithproceeding.
Appears in 1 contract
Procedures for Indemnification. An indemnified party hereunder (a) All claims for indemnification by any Indemnified Party under this Article VII shall be asserted and resolved as follows:
(i) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under this Article VII is asserted against or sought to be collected from such Indemnified Party by a Person other than a Party or an Affiliate thereof (a “Third Party Claim”), the Indemnified Party shall deliver a written notification, enclosing a copy of all papers served, if any, and specifying the nature of and basis for such Third Party Claim and for the Indemnified Party’s claim for indemnification that is being asserted under any provision of this Article VII against an Indemnifying Party, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of such Third Party Claim (a “Claim Notice”) with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the Indemnifying Party shall not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim to the extent that the Indemnifying Party’s ability to defend has been prejudiced by such failure of the Indemnified Party. The Indemnifying Party shall notify the indemnifying party, in writing, Indemnified Party as soon as practicable within the period ending thirty (30) Business Days following receipt by the Indemnifying Party of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount either a Claim Notice or an estimate of Indemnity Notice (as defined below) (the “Dispute Period”) whether the Indemnifying Party disputes its liability or the amount of its liability to the Claims Indemnified Party under this Article VII and Losses. In whether the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountantsIndemnifying Party desires, at its sole cost and expense; provided, howeverto defend the Indemnified Party against such Third Party Claim.
(ii) If the Indemnifying Party notifies the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Article VII, if then the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party Indemnifying Party shall have the right to select separate legal defend, with counsel reasonably satisfactory to assume such defense and otherwise participate in such action the Indemnified Party, at the indemnifying party’s expense. The indemnified party sole cost and expense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings shall have the right to employ counsel separate from counsel employed be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party in any such action and to participate therein, but the fees and expenses case of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which could the Indemnified Party shall not be indemnified in full pursuant to this Article VII). The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this Section 7.02(a)(ii), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided, further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 7.02(a)(ii), and except as provided in the preceding sentence, the Indemnified Party shall bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under this Article VII with respect to such Third Party Claim.
(iii) If the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Third Party Claim pursuant to this Article VII, or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted by the Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the Indemnified Party(with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 7.02(a)(iii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability or the amount of its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in Section 7.02(a)(iv) the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 7.02(a)(iii) or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and the Indemnified Party shall reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 7.02(a)(iii), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation.
(iv) If the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability or the amount of its liability to the Indemnified Party with respect to the Third Party Claim or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability or the amount of its liability to the Indemnified Party with respect to such Third Party Claim, the amount of Damages specified in the Claim Notice shall be conclusively deemed a liability of the Indemnifying Party under this Article VII and the Indemnifying Party shall pay the amount of such Damages to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability or the amount of its liability with respect to such Third Party Claim, the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute; provided, however, that if the dispute is not resolved within thirty (30) Business Days after the Claim Notice, the Indemnifying Party shall be entitled to institute such legal action as it deems appropriate.
(v) In the event any Indemnified Party should have a material precedential impact or effect on claim under this Article VII against the business or financial condition Indemnifying Party that does not involve a Third Party Claim, the Indemnified Party shall deliver a written notification of a claim for indemnity under this Article VII specifying the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute nature of and basis for such claim, both parties together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of such claim (an “Indemnity Notice”) with reasonable promptness to the Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall cooperate not impair such Party’s rights hereunder except to the extent that the Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim or the amount of the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim or the amount of the claim described in such Indemnity Notice, the amount of Damages specified in the defense Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under this Article VII and the Indemnifying Party shall pay the amount of such Damages to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability or prosecution thereof the amount of its liability with respect to such claim, the Indemnifying Party and the Indemnified Party shall furnish proceed in good faith to negotiate a resolution of such recordsdispute; provided, information however, that if the dispute is not resolved within thirty (30) Business Days after the Claim Notice, such dispute shall be resolved in accordance with the provisions of Section 8.08.
(b) The Indemnifying Party agrees to pay the Indemnified Party, promptly as such expenses are incurred and testimonyare due and payable, for any reasonable legal fees or other reasonable expenses incurred by them in connection with investigating or defending any such claim.
(c) The indemnification provisions contained in this Article VII shall be in addition to (i) any cause of action or similar rights of the Indemnified Party against the Indemnifying Party or others, and attend such conferences, discovery proceedings, hearings, trials and appeals, as (ii) any liabilities the Indemnifying Party may be reasonably requested in connection therewithsubject to.
Appears in 1 contract
Sources: Restructuring, Settlement and Mutual General Release Agreement (Ngen Technologies Holdings Corp.)
Procedures for Indemnification. An Promptly after receipt by an indemnified party hereunder shall notify under Sections 12.2 and 12.3 of notice of the commencement of any action for which indemnification may be available under Section 12.2 or 12.3, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement thereof, but the failure so to notify that indemnifying party shall not relieve it of any liability that it may have to any indemnified party, in writing, except to the extent the indemnifying party demonstrates that the defense of such action is prejudiced thereby. In case any claim for indemnification, specifying in reasonable detail such action shall be brought against an indemnified party and it shall give notice to the nature indemnifying party of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Lossescommencement thereof, the indemnifying party may shall be entitled to participate therein and, to the extent that it shall elect, to assume the defense or the prosecution thereof by prompt written notice with counsel reasonably satisfactory to such indemnified party including the employment of counsel or accountantsand, at its cost and expense; provided, however, if the defendants in any such action include both after notice from the indemnifying party and the to such indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting its election so to assume the defense of any such actionthereof, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. 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 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 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) no compromise or settlement thereof may be effected by the indemnifying party without the indemnified party's consent (which shall not be unreasonable withheld) unless (i) there is no finding or admission or any violation of law or any violation of the rights of any such Claims person and Losses no effect on any other claims that may be made against the indemnified party and (ii) the 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 prior written consent, consent (which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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).
Appears in 1 contract
Procedures for Indemnification. An indemnified party hereunder shall notify (i) Promptly after the indemnifying partydiscovery by any Buyer Indemnified Parties or Seller Indemnified Parties (each, in writing, an “Indemnified Party”) of any Buyer Indemnifiable Costs or Seller Indemnifiable Costs, as applicable, or claim or breach, that might give rise to indemnification hereunder, the Indemnified Party shall deliver to the party obligated to provide indemnification under this Agreement (the “Indemnifying Party”) a certificate (a “Claim Certificate”) that:
(A) states that the Indemnified Party has paid or properly accrued Buyer Indemnifiable Costs or Seller Indemnifiable Costs, as applicable, or reasonably anticipates that it may or will incur liability for indemnificationcosts, specifying for which such Indemnified Party is entitled to indemnification pursuant to this Agreement; and
(B) specifies in reasonable detail detail, to the extent practicable and available, each individual item of loss included in the amount so stated, the basis for any anticipated liability and the nature of the Claims and Losses misrepresentation, default, breach of warranty or breach of covenant or claim to which each such item is related and, if knownto the extent computable, the amount or an estimate computation of the amount to which such Indemnified Party claims to be entitled hereunder provided, however that failure to give a Claim Certificate shall not affect any Indemnified Party’s ability to seek reimbursement unless, and only to the extent that, such failure has materially and adversely affected the Indemnifying Party’s liability. If the Indemnifying Party objects to the indemnification of the Claims and Losses. In the event an Indemnified Party in respect of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Lossesor claims specified in any Claim Certificate, the indemnifying party may assume the defense or the prosecution thereof by prompt Indemnifying Party shall deliver a written notice to indemnified party including such effect to the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above Indemnified Party within thirty (30) Days days after notice thereof from receipt by the indemnified partyIndemnifying Party of such Claim Certificate. Thereafter, the indemnified party may settle such claim without Indemnifying Party and the indemnifying party’s consent. The indemnifying party Indemnified Party shall not attempt in good faith to agree to a settlement of any Claims and Losses which provides for any relief other than upon the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition rights of the indemnified party without respective parties within thirty (30) days of receipt of such Claim Certificate with respect to each of such claims to which the indemnified party’s prior written consentIndemnifying Party has objected. Whether If the Indemnified Party and the Indemnifying Party agree with respect to any of such claims, the Indemnified Party and the Indemnifying Party shall promptly prepare and sign a memorandum setting forth such agreement and. Should the Indemnified Party and the Indemnifying Party fail to agree as to any particular item or not items or amount or amounts, then the indemnifying party chooses to so defend or prosecute such claim, both parties shall cooperate resolve such dispute 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 therewithaccordance with Section 8.4 hereof.
Appears in 1 contract
Procedures for Indemnification. An indemnified party hereunder Whenever a claim shall arise for indemnification under this Section 5, the relevant Indemnitees, as appropriate, shall promptly notify the indemnifying party, in writing, Indemnifying Party and request the Indemnifying Party to defend the same. Failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of any claim for indemnificationliability which the Indemnifying Party might have, specifying in reasonable detail except to the nature of extent that such failure prejudices the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and LossesIndemnifying Party's ability to defend such claim. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party The Indemnifying Party shall have the right to select separate legal defend against such liability or assertion in which event the Indemnifying Party shall give written notice to the relevant Indemnitees of acceptance of the defense of such claim and the identity of counsel selected by the Indemnifying Party. Except as set forth below, such notice of the relevant Indemnitees shall give the Indemnifying Party full authority to assume 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 prejudice the intellectual property rights of the relevant Indemnitees. The Indemnifying Party shall consult with the relevant Indemnitees prior to any compromise or settlement which would affect the intellectual property rights or other rights of any Indemnitee, and the relevant Indemnitees shall have the right to refuse such compromise or settlement and, at the refusing party's or refusing parties' cost, to take over such defense, provided that in such event the Indemnifying Party shall not be responsible for, nor shall it be obligated to indemnify the relevant Indemnitees against, any costs or liability in excess of such refused compromise or settlement. With respect to any defense accepted by the Indemnifying Party, the relevant Indemnitees shall be entitled to 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 otherwise participate in also shall be entitled to employ separate counsel for such action defense at the indemnifying party’s such Indemnitees expense. The In the event the Indemnifying Party does not accept the defense of any indemnified party claim as provided above, the relevant Indemnitees shall have the right to employ counsel separate from counsel employed by for such defense at the indemnifying expense of the Indemnifying Party. Each party agrees to cooperate and to cause its employees and agents to cooperate with then other party in the defense of any such action and to participate therein, but the fees and expenses relevant records of such counsel employed by the indemnified each party shall be at its expense. The indemnifying available to the other party shall not be liable for any settlement of with respect to any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithdefense.
Appears in 1 contract
Sources: Agreement (5th Avenue Channel Corp)
Procedures for Indemnification. An Promptly after receipt by an indemnified party hereunder under sections 7.1 or 7.2 of notice of the commencement of any action for which indemnification may be available under section 7.1 or 7.2 such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under such section, give notice to the indemnifying party of the commencement thereof, but the failure so to notify the indemnifying party shall notify not relieve it of any 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 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 the indemnifying party without the 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 rights of any person and no effect on any other claims that may be made against the indemnified party or (ii) the 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). If notice is given to an indemnifying party of the commencement of any action and it does not, within ten business days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense thereof, the indemnifying party shall be bound by any determination made in such action or any compromise or settlement thereof effected by the 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, in writing, of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice exclusive right to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any defend such action, but the indemnified indemnifying party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for bound by any determination of an action so defended or any compromise or settlement of any such Claims and Losses thereof effected without its prior written consent, consent (which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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).
Appears in 1 contract
Sources: Stock Purchase Agreement (Interactive Magic Inc /Md/)
Procedures for Indemnification. An The party which is entitled to be indemnified under this Article 10 (individually or collectively the "Indemnified Party") shall promptly give notice to the indemnifying party hereunder after obtaining actual knowledge of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in this Article 10. If such indemnity shall notify arise from the claim of a third party, the Indemnified Party shall permit the indemnifying party, in writing, of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may shall, assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such actionclaim and any litigation resulting from such claim. Notwithstanding the foregoing in this Section 10.3, the indemnified right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice or delay by the Indemnified Party in giving such notice unless, and then only to the extent that, the rights and remedies of the indemnifying party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. If the indemnifying party assumes the defense of any such claim, the Indemnified Party shall have no further right to select separate indemnification hereunder with respect to claims consisting of its legal counsel fees and expenses, so long as the indemnifying party is continuing to assume defend such defense and otherwise participate claim in good faith. With respect to any claim by a third party, upon the written request of the indemnifying party, the Indemnified Party shall make available to the indemnifying party all relevant information in the possession of the Indemnified Party that may be material to such action claim. The Indemnified Party shall, at the indemnifying party’s 's cost and expense. The indemnified party shall have the right to employ counsel separate from counsel employed by , provide the indemnifying party with such assistance as the indemnifying party may reasonably request in any order to defend such action and to participate therein, but claim. If the fees and expenses indemnifying party shall not undertake the defense of such counsel employed by claim, as provided herein, then the indemnified party obligation of the Indemnified Party to furnish information, as aforesaid, shall be at its expensecease. The indemnifying party shall not be liable settle or compromise any claim for any settlement of any such Claims and Losses effected which the Indemnified Party is entitled to indemnification by the indemnifying party without its the prior written consentconsent of such Indemnified Party, which shall consent will not be unreasonably withheld; , provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle any claim for which it is defending and indemnifying the Indemnified Party without the consent of the Indemnified Party if such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than may be settled or compromised solely by the payment of monetary damages or which could have a material precedential impact or effect on money by the business or financial condition of the indemnified indemnifying party without the indemnified party’s prior written consent. Whether Indemnified Party admitting any liability whatsoever and without the Indemnified Party being restricted in any way in the operation of its business due to such settlement or not compromise, provided further, that the indemnifying party chooses to so defend or prosecute Indemnified Party receives a full, complete and unconditional release of the Indemnified Party from any such claim, both parties 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.
Appears in 1 contract
Procedures for Indemnification. An indemnified party hereunder Any Person eligible for indemnification under Sections 10.04 and 10.05 above (each, the “Indemnified Party”) shall notify give notice to the indemnifying partyParty or Parties obligated under such Section to indemnify such Indemnified Party (each, in writingan “Indemnifying Party”) each time that, and within ten (10) days after, the Indemnified Party becomes aware of any fact or circumstance which would reasonably be expected to give rise to an obligation to indemnify under such Section 10.04 or 10.05, which notice shall be accompanied by a copy of any claim for indemnification, specifying made which may result in reasonable detail the nature of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Lossessuch obligation to indemnify. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party The Indemnifying Party shall have the right to select separate legal counsel and obligation to assume such the defense and otherwise participate in such action at the indemnifying party’s expense. The indemnified party shall have the right to employ (with counsel separate from counsel employed selected by the indemnifying party in any such action Indemnifying Party and reasonably acceptable to participate therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any Indemnified Party) or settlement of any such Claims and Losses effected claim in respect of which it is obligated to provide indemnity hereunder; provided that the Indemnifying Party shall not settle or compromise any such claim without its the Indemnified Party’s prior written consentconsent thereto (such consent not to be unreasonably withheld or delayed), unless the terms of such settlement or compromise discharge and release the Indemnified Party from any and all liabilities and obligations thereunder; provided, further, that PCL and the Padres shall neither institute nor defend any lawsuit on behalf of the City Indemnified Parties without the prior written consent of the City (which consent shall not be unreasonably withheld; provided that withheld or delayed), and if the indemnifying party City does not assume give its consent to such lawsuit or institutes such lawsuit itself, PCL and the Padres shall be relieved of their indemnity obligations described in this Article 10 and shall be relieved of their cost overrun obligations regarding the Ballpark Project for all costs arising out of such lawsuit. Notwithstanding the foregoing, the Indemnified Party at all times shall have the right, at its option and expense, to participate fully in the defense or prosecution settlement of a such claim, and if the Indemnifying Party does not proceed diligently to commence to defend or settle such claim within fifteen (15) days after its receipt of notice of the assertion or commencement thereof, then the Indemnified Party shall have the right, but not the obligation, to undertake the defense or settlement of such claim for the account and at the risk of the Indemnifying Party and the Indemnifying Party shall be bound by any defense or settlement that the Indemnified Party may make to such claim. The parties agree that, for the purpose of enforcing any right of indemnity hereunder, the Indemnified Party may join the Indemnifying Party in any third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle to which such claim without the indemnifying party’s consentright of indemnity would or might apply. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties shall cooperate fully in the defense defending 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 therewithsettling any third-party claim.
Appears in 1 contract
Sources: Ballpark Design Build Procurement Consultant Agreement
Procedures for Indemnification. An indemnified party hereunder If an event occurs that entitles a Parent Indemnified Party, or that an Parent Indemnified Party reasonably believes entitles it, to indemnification pursuant to this Article VII, Parent, on behalf of such Parent Indemnified Party, shall promptly notify the indemnifying partySecurityholder Representative, in writing, of any claim for indemnification, specifying which notice shall set forth in reasonable detail the nature of the Claims basis and Losses and, if known, the amount or an estimate of the amount of such claim; provided that no delay on the Claims and Losses. In part of Parent in notifying the event of Securityholder Representative shall relieve a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense Founder of any liability or obligation hereunder, except to the extent that such action, the indemnified party Founder has been materially prejudiced by Parent’s failure to give such notice. The Parent Indemnified Party shall have the right to select separate legal counsel to assume such undertake, conduct, control and settle the defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without third party claim made after the Effective Time; provided that any judgment, order or settlement to which the Securityholder Representative has not provided its prior written consentconsent shall not, which in itself, be determinative of the Founders’ obligation to provide indemnification or reimbursement pursuant to this Article VII (or the amount of such obligation) or that the Company has breached a representation, warranty, covenant or agreement set forth herein. The Securityholder Representative shall not be unreasonably withheld; provided that if cooperate with the indemnifying party does not assume Parent Indemnified Party and its counsel in the defense of such claim and shall be entitled to participate in the defense thereof at its own cost and expense, and Parent shall give good faith and due consideration to the Securityholder Representative’s recommendations with respect thereto. To the extent that the Securityholder Representative disputes a claim for indemnification or prosecution reimbursement pursuant this Article VII, the Securityholder Representative shall provide written notice of a third-party claim as provided above such dispute to Parent within thirty (30) Days after days of receipt of notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties setting forth in reasonable detail the basis and amount of such dispute. In the event that the Securityholder Representative fails to provide written notice to Parent within the required number of days of receipt of notice from Parent that the Securityholder Representative either acknowledges and agrees to pay such Loss or dispute such Loss (and Parent has made at least one further good faith effort to solicit the Securityholder Representative’s response, provided such solicitation shall cooperate not restart the thirty (30) day period the Securityholder Representative has to dispute a claim for indemnification), the Founders shall be deemed to have acknowledged and agreed to pay such Loss in the defense or prosecution thereof full and shall furnish to have waived any right to dispute such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewithLoss.
Appears in 1 contract
Sources: Merger Agreement (Netsuite Inc)
Procedures for Indemnification. An Whenever a claim shall arise for indemnification under Section 10.1, the indemnified party hereunder or parties, as appropriate (the “Other Parties”), shall promptly notify the indemnifying party, in writing, party or parties from whom indemnification is sought for such claim (the “Indemnifying Party”) and request the Indemnifying Party to defend the same. Failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of any claim for indemnificationliability which the Indemnifying Party might have, specifying except to the extent that such failure prejudices the Indemnifying Party’s position. The Indemnifying Party shall have the right to defend against such liability or assertion in reasonable detail which event the nature Indemnifying Party shall give written notice to the Other Parties of acceptance of the Claims defense of such claim and Losses the identity of counsel selected by the Indemnifying Party.
(a) If the Indemnifying Party assumes the defense of an action:
(A) no settlement or compromise thereof may be effected *** denotes language for which American Medical Alert Corp. will request confidential treatment pursuant to the rules and regulations of the Securities Act of 1933, as amended. Confidential portions have been omitted and will be filed separately with the Securities and Exchange Commission.
(i) by the Indemnifying Party without the written consent of the Other Parties (which consent shall not be unreasonably conditioned, withheld or delayed) unless (x) there is no finding or admission of any violation of law or any violation of the rights of any Person by any Other Party and no adverse effect on any other claims that may be made against any Other Party and (y) all relief provided is paid or satisfied in full by the Indemnifying Party, or
(ii) by any Other Party without the consent of the Indemnifying Party, such consent not to be unreasonably withheld or delayed, and,
(B) the Other Parties may subsequently assume the defense of such action if knowna court of competent jurisdiction determines that the Indemnifying Party is not vigorously defending such action. In no event shall an Indemnifying Party be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld or delayed).
(b) With respect to any defense accepted by the Indemnifying Party, the amount or an estimate of Other Parties shall be entitled to participate with the amount of the Claims Indemnifying Party in such defense and Lossesalso shall be entitled to employ separate counsel for such defense at their own expense. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume Indemnifying Party does not accept the defense of any indemnified claim as provided above or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be otherwise exists a conflict between of interest such that independent counsel for the positions of such parties in conducting Other Parties would be appropriate for the defense of any such actionindemnified claim, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. The indemnified party Other Parties shall have the right to employ counsel separate from counsel employed by for such defense at the indemnifying party expense of the Indemnifying Party. Each Member agrees to cooperate and to cause the Company to cooperate with the other parties in the defense of any such action and to participate therein, but the fees and expenses relevant records of such counsel employed by the indemnified each party shall be at its expense. The indemnifying party shall not be liable for any settlement of available to the other parties with respect to any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithdefense.
Appears in 1 contract
Sources: Limited Liability Company Agreement (American Medical Alert Corp)
Procedures for Indemnification. (a) An indemnified party hereunder Indemnification Claim shall notify be made by the indemnifying partyIndemnitee by delivery of a written declaration to the Indemnitor requesting indemnification and specifying the basis on which indemnification is sought and the amount of asserted Damages and, in writingthe case of a Third Party Claim, containing (by attachment or otherwise) such other information as the Indemnitee shall have concerning such Third Party Claim.
(b) If the Indemnification Claim involves a Third Party Claim, the procedures set forth in Section 12.4 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 thirty (30) Business Days to object to such Indemnification Claim by delivery of any claim for indemnification, a written notice of such objection to the Indemnitee specifying in reasonable detail the nature basis for such objection. Failure to timely so object shall constitute a final and binding acceptance of the Claims Indemnification Claim by the Indemnitor and Losses andthe Indemnification Claim shall be paid within ten (10) Business Days. If an objection is timely interposed by the Indemnitor, then the Indemnitee and the Indemnitor shall negotiate in good faith for a period of sixty (60) 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 known, the amount or an estimate of Indemnitor and the Indemnitee still cannot agree on the amount of an Indemnification Claim, either the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense Indemnitor or the prosecution thereof by prompt written notice to indemnified party including Indemnitee may submit the employment of counsel or accountants, at its cost and expensedispute concerning such Indemnification Claim for resolution as provided in Section 15.2 below; provided, however, if nothing herein shall prevent the defendants parties from seeking equitable or injunctive relief in any a court of equity with respect to such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithdispute.
Appears in 1 contract
Sources: Securities Purchase Agreement (Global Payments Inc)
Procedures for Indemnification. An indemnified (a) Whenever a claim shall arise for indemnification under this Article XI, the party hereunder entitled to indemnification (the “Indemnified Party”) shall promptly notify the indemnifying partyparty from which indemnification is sought (the “Indemnifying Party”) of such claim and, when known, the facts constituting the basis for such claim; provided, however, that in writing, the event of any claim for indemnificationindemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, specifying the Indemnified Party shall give such notice 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 reasonable detail any event within five Business Days following receipt of notice thereof; provided, further, that no delay or failure to give such notice by the nature Indemnified Party to the Indemnifying Party shall adversely affect any of the Claims and Losses andother rights or remedies which the Indemnified Party has under this Agreement, if knownor alter or relieve the Indemnifying Party of its obligation to indemnify the Indemnified Party, except to the amount extent that such delay or an estimate of failure has materially prejudiced the amount of the Claims and LossesIndemnifying Party. In the event of any such claim for indemnification resulting from or in connection with a claim or Legal Proceeding by any a third party, or if there is any claim against a third party available by virtue the Indemnifying Party may (subject to Section 1.8 and except with respect to the ARC Product Issue, in respect of the circumstances of the Claims which Sections 11.6(c), (d), and Losses(e) shall apply) at its sole cost and expense, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice within 30 calendar days, using counsel that is reasonably satisfactory to indemnified party the Indemnified Party. If an Indemnifying Party assumes the defense of any such claim or Legal Proceeding, the Indemnifying Party shall be entitled to take all steps necessary in the defense thereof including the employment settlement of counsel or accountants, at its cost and expenseany case that involves solely monetary damages without the consent of the Indemnified Party; provided, however, if that the defendants Indemnified Party may, at its own expense, participate in any such action include both proceeding with the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions counsel of such parties in conducting its choice without any right of control thereof. The Indemnifying Party, if it has assumed the defense of any claim or Legal Proceeding by a third party as provided herein, shall not consent to, or enter into, any compromise or settlement of (which settlement (i) commits the Indemnified Party to take, or to forbear to take, any action or (ii) does not provide for a full and complete written release by such actionthird party of the Indemnified Party), or consent to the indemnified party shall have the right entry of any judgment that does not relate solely to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. The indemnified party shall have the right to employ counsel separate from counsel employed by the indemnifying party in monetary damages arising from, any such action and to participate therein, but claim or Legal Proceeding by a third party without the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its Indemnified Party’s prior written consent, which shall not be unreasonably withheld; provided that if , conditioned or delayed. The Indemnifying Party and the indemnifying Indemnified Party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Article XI, including, but not limited to, by providing (except with respect to the ARC Product Issue, in respect of which Sections 11.6(c), (d), and (e) shall apply) the other party with reasonable access to employees and officers (including as witnesses) and other information. 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, conditioned or delayed. If the Indemnifying Party does not assume the defense of any such claim or prosecution litigation in accordance with the terms hereof, the Indemnified Party may defend against such claim or Legal Proceeding in such manner as it may deem appropriate, including settling such claim or Legal Proceeding (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 will promptly indemnify the Indemnified Party in accordance with the provisions of this Section 11.3.
(b) The parties acknowledge that Seller expressly disputes any claim that ARC bears any responsibility for any losses that may be suffered or incurred by third parties arising out of or in connection with the ARC Product Issue.
(c) Whenever any claim or Legal Proceeding by a third-third party claim as provided above is brought against ARC in connection with the ARC Product Issue (a “Third Party ARC Claim”), Purchaser shall promptly notify Seller of such Third Party ARC Claim not later than ten Business Days prior to the time any response to the asserted Third Party ARC Claim is required, if possible, and in any event within five Business Days following receipt of notice thereof and, when known, the facts constituting the basis for such Third Party ARC Claim. Upon receipt by Seller of such notice, Seller may at its election either (i) promptly acknowledge that such Third Party ARC Claim is a Valid Claim or (ii) cooperate with Purchaser in good faith for a period of ten (10) Business Days in an attempt to mutually agree that such Third Party ARC Claim is a Valid Claim. If following that ten (10) Business Day period, Seller and Purchaser have not been able to mutually agree that such Third Party ARC Claim is a Valid Claim, then Seller shall be and remain liable for indemnification pursuant to Section 11.2(a)(iv), and shall indemnify the Purchaser Indemnified Group for any Losses in accordance therewith, unless and until a determination is made by an expert single arbitrator appointed pursuant to this Section 11.6(c) (the “Expert Arbitrator”), in arbitration proceedings conducted pursuant to Section 11.6(e) below, that the relevant Third Party ARC Claim is not a Valid Claim. If the Seller wishes the Expert Arbitrator to determine whether a Third Party ARC Claim is a Valid Claim, Seller shall give written notice thereof to Purchaser and the parties will seek in good faith to mutually agree on the identity of the Expert Arbitrator. Failing such agreement within thirty (30) Business Days from the date of receipt by Purchaser of such notice from Seller, the Expert Arbitrator will be selected pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The Expert Arbitrator shall, whether agreed by the parties or selected pursuant to the Commercial Arbitration Rules of the American Arbitration Association, be a single arbitrator who has not less than 7 years’ experience practicing as an attorney-at-law in the United States in the dispute resolution field and who has not less than 10 years’ particularized knowledge regarding product liability and recall claims in the automotive industry in the United States.
(d) For purposes of this Agreement, a “Valid Claim” shall be a Third Party ARC Claim that is either mutually agreed by the parties in writing, or determined by the Expert Arbitrator, in arbitration proceedings conducted pursuant to Section 11.6(e) below, to be a claim in respect of which it cannot be said that the relevant third party has no real prospect of succeeding in its claim if the matter were to come before a court or arbitral body of competent jurisdiction.
(e) In the event that Seller wishes the determination of the Expert Arbitrator as to whether a Third Party ARC Claim is a Valid Claim pursuant to Section 11.6(c), the arbitration conducted by the Expert Arbitrator shall be administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the determination rendered by the Expert Arbitrator may be entered in any court having jurisdiction thereof. The parties will jointly advise the Expert Arbitrator that they desire an expedited arbitration process that will, to the extent practicable, result in any arbitration award being entered within three (3) months of confirmation of the Expert Arbitrator’s appointment. If the Expert Arbitrator determines that the relevant Third Party ARC Claim is a Valid Claim, Seller’s indemnification obligation pursuant to Section 11.2(a)(iv) in respect of such Third Party ARC Claim shall not be qualified by Sections 11.6(c), (d) and (e). If the Expert Arbitrator determines that the relevant Third Party ARC Claim is not a Valid Claim, Purchaser shall, within ten (10) Business Days after notice such determination, pay to Seller an amount equal to the amount of any Losses in respect of which Seller has prior to the date thereof from indemnified the indemnified party, Purchaser Indemnified Group pursuant to Sections 11.2(a)(iv) and 11.6(c) in respect of such Third Party ARC Claim.
(f) Any Losses suffered by the indemnified Purchaser Indemnified Group as a result of a Third Party Claim being the subject of a decision or award in favor of the relevant third party may settle such claim without the indemnifying party’s consent. The indemnifying party by a court or arbitral body of competent jurisdiction shall not agree be subject to the provisions of Sections 11.6(c), (d) and (e) hereof, and Seller’s indemnification obligation pursuant to Section 11.2(a)(iv) shall not be qualified by Sections 11.6(c), (d) and (e).
(g) The parties acknowledge that from Closing ARC will not be a settlement controlled Affiliate of any Claims Purchaser and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or that, accordingly, Purchaser may not the indemnifying party chooses be able to so defend or prosecute such claim, both parties shall cooperate in procure that Seller is able to assume the defense of Third Party ARC Claims, or prosecution thereof that Seller has unfettered access to employees and shall furnish such records, officers of ARC and other information of ARC in connection with Third Party ARC Claims. Purchaser agrees to use its commercially reasonable best efforts (including without limitation by exercise of its rights as a shareholder of ARC) to cause ARC (a) to reasonably cooperate with Seller and testimonySeller’s insurance providers to process any Third Party ARC Claim, and attend (b) to permit Seller to assume the defense of Third Party ARC Claims.
(h) If Purchaser, notwithstanding that from Closing ARC will not be a controlled Affiliate of Purchaser, is able to cause ARC to agree in writing at the relevant time to permit Seller to assume the defense of a Third Party ARC Claim, using counsel that is reasonably satisfactory to Purchaser and ARC, and otherwise in accordance with the provisions of Section 11.6(a), then Seller shall have no right to seek to have the Expert Arbitrator make any determination and Seller’s indemnification obligation pursuant to Section 11.2(a)(iv) shall not be qualified by Sections 11.6(c), (d) and (e). For the avoidance of doubt, if Seller is permitted by ARC to assume the defense of a Third Party ARC Claim in accordance with the provisions of Section 11.6(a), but Seller elects not to assume such conferencesdefense or fails to give written notice so to assume within 30 calendar days after receipt of such permission from ARC, discovery proceedingsthen Seller shall have no right to seek to have the Expert Arbitrator make any determination as to whether the relevant Third Party ARC Claim is a Valid Claim and Seller’s indemnification obligation pursuant to Section 11.2(a)(iv) shall not be qualified by Sections 11.6(c), hearings, trials (d) and appeals, as may be reasonably requested in connection therewith(e).
Appears in 1 contract
Procedures for Indemnification. (a) An indemnified party hereunder Indemnification Claim shall notify be made by an Indemnitee by delivery of a written notice to the indemnifying partyIndemnitor requesting indemnification and specifying the basis on which indemnification is sought and the amount of asserted Losses and, in writingthe case of a Third Party Claim, containing (by attachment or otherwise) such other information as such Indemnitee shall have concerning such Third Party Claim.
(b) If the Indemnification Claim involves a Third Party Claim, the procedures set forth in Paragraph 9.4 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 ninety (90) days to object to such Indemnification Claim by delivery of any claim for indemnification, a written notice of such objection to such Indemnitee specifying in reasonable detail the nature basis for such objection. If the Indemnification Claim is an Environmental Claim, Indemnitor and Indemnitee shall immediately commence and shall attempt to complete within the ninety (90) day period such investigations as are necessary to determine whether the pollutants triggering a clean up existed at the time of Closing. Failure to timely so object shall constitute a final and binding acceptance of the Claims Indemnification Claim by the Indemnitor, and Losses andthe Indemnification Claim shall be paid in accordance with subparagraph (d) hereof. If an objection is timely interposed by the Indemnitor, if knownthen the parties shall negotiate in good faith for a period of not less than sixty (60) days from the date the Indemnitee receives such objection prior to commencing any formal legal action, the amount suit or an estimate proceeding with respect to such Indemnification Claim.
(d) If Indemnitee requests a sum of money then upon determination of the amount due the Indemnitee for an Indemnification Claim, whether by agreement between the Indemnitor and the Indemnitee or by an arbitration award or by any other final adjudication ("Determined Amount of Indemnification"), the Indemnitor shall pay the amount of such Indemnification Claim within ten (10) days of the Claims and Losses. In date such amount is determined.
(e) If the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting Indemnitor assumes the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. The indemnified party shall have the right to employ counsel separate from counsel employed an Environmental Claim: (i) no compromise or settlement thereof may be effected by the indemnifying party in any such action and to participate therein, but Indemnitor without the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written Indemnitee's consent, which consent shall not be unreasonably withheld; provided . In the event that if the indemnifying party does not assume the defense or prosecution Indemnitee objects to Indemnitor's acceptance of a third-party claim compromise or settlement proposed in resolution of an Environmental Claim Indemnitor shall tender to Indemnitee funds equal to the amount of the proposed settlement or equal to the sum required to conduct any necessary remediation, and Indemnitee shall thereafter assume any further expenses incurred in the continuation of such litigation or remediation, provided, however, that Indemnitor shall in no event accept or request that Indemnitee accept a compromise or settlement containing terms obligating Indemnitee to undertake any actions which Indemnitee is not legally required to undertake, or which would require Indemnitee to materially impair its ongoing operations; (ii) the Indemnitee shall have no liability with respect to any compromise or settlement thereof effected without its consent; and (iii)in the event that Purchaser seeks indemnification from OTC, Purchaser shall allow OTC, as provided above within thirty (30) Days after notice thereof from Indemnitor, such access as is reasonably necessary to conduct such remediation of the indemnified party, property as is required for the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement resolution of any Claims and Losses Environmental Claim for which provides OTC is liable. Consent shall be presumed in the case of settlements of $10,000 or less where the Indemnitor has not responded within five (5) business days of notice of a proposed settlement.
(f) OTC will perform a study of the Environmental Conditions at the Cochranville Facility within six (6) months after the Closing Date ("Study"). Such Study will establish contaminants levels as of the Closing Date for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the specific pollutant measured. Purchaser agrees to provide access during normal business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses hours to so defend or prosecute such claim, both parties shall cooperate in the defense or prosecution thereof enable OTC 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 therewithits agents to perform said study.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Icn Pharmaceuticals Inc)
Procedures for Indemnification. An indemnified party hereunder (a) A claim for indemnification under this Agreement (an "INDEMNIFICATION CLAIM") shall notify be made by the indemnifying partyIndemnitee by delivery of a written declaration to the Indemnitor requesting indemnification and specifying the basis on which indemnification is or may be sought and the amount of asserted Losses and, in writingthe case of a Third Party Claim (as defined in Section 11.5 of this Agreement), containing (by attachment or otherwise) such other information as Indemnitee shall have concerning such Third Party Claim.
(b) If the Indemnification Claim involves a Third Party Claim the procedures set forth in Section 11.5 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 30 days to object to such Indemnification Claim by delivery of any claim for indemnification, a written notice of such objection to Indemnitee specifying in reasonable detail the nature basis for such objection. Failure to timely so object shall constitute a final and binding acceptance of the Claims Indemnification Claim by the Indemnitor and Losses andthe Indemnification Claim shall be paid in accordance with the following subsection (d). If an objection is timely interposed by the Indemnitor and the dispute is not resolved within 60 days from the date the Indemnitee receives such objection (the "NEGOTIATION PERIOD"), if knownsuch dispute may be resolved by binding arbitration in Lexington, Kentucky, in accordance with the amount Commercial Arbitration Rules of the American Arbitration Association then in effect, or an estimate by another appropriate proceeding. If such dispute is submitted to arbitration, any award made therein shall be conclusive and binding on the parties and enforceable in a court of law.
(d) Upon determination of the amount of an Indemnification Claim, whether by the Claims Indemnitor's failure to timely object, by agreement between the Indemnitor and Losses. In the event Indemnitee or by an adjudication of a claim court of law or an arbitration award, Indemnitor shall pay the amount of such Indemnification Claim by any third party, or if there is any claim against a third party available by virtue check within 10 days of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any date such action include both the indemnifying party and the indemnified party and such parties amount is determined. Any Indemnification Claim not paid within 10 day period shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action accrue interest until paid at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithCommercial Paper Rate.
Appears in 1 contract
Sources: Asset Purchase Agreement (Holiday Rv Superstores Inc)
Procedures for Indemnification. An Promptly after receipt by an indemnified party hereunder pursuant to the provisions of this Section 10 of notice of the commencement of any action, claim or proceeding involving the subject matter of the foregoing indemnity provisions, such indemnified party shall, if a claim thereof is to be made against an indemnifying party pursuant to the provisions of this Section 10, promptly notify such indemnifying party of the commencement thereof; but the omission to so notify such indemnifying party shall notify not relieve it from any liability which it may have to the indemnified party otherwise than hereunder. In case such action, claim or proceeding is brought against an indemnified party and it notifies the indemnifying party, in writing, of any claim for indemnification, specifying in reasonable detail the nature party of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Lossescommencement thereof, the indemnifying party shall have the right to participate in, and, to the extent that it may wish, to assume the defense or the prosecution thereof by prompt written notice conduct thereof, with counsel reasonably satisfactory to such indemnified party including the employment of counsel or accountants, at its cost and expenseparty; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party and such parties shall have reasonable reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party, or if there is a conflict between of interest which would prevent counsel for the positions of such parties in conducting indemnifying party from also representing the defense of any such actionindemnified party, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in the defense of such action at the indemnifying on behalf of such indemnified party’s expense. The indemnified party shall have the right to employ counsel separate After notice from counsel employed by the indemnifying party in any to such action and to participate therein, but the fees and expenses of such counsel employed by the indemnified party shall be at of its expense. The election so to assume the defense thereof, the indemnifying party shall not be liable to the indemnified party for any settlement 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 the expense of the indemnifying party. No indemnifying party, in the defense of any such Claims and Losses effected claim or litigation, shall, except with the 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 release from all liability in respect to such claim or litigation. In the event the proceeding is a tax audit, the indemnified party shall not take any action, including the extension of any applicable limitations period, without its prior the express written consentconsent of the indemnifying party, which consent shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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.
Appears in 1 contract
Procedures for Indemnification. An indemnified The procedures for indemnification shall be as follows:
(a) The party hereunder claiming indemnification (the “Indemnified Party”) shall notify promptly give notice to the indemnifying party, in writing, party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim for indemnificationclaim, whether between the parties or brought by a third party against the Indemnified Party, specifying in reasonable detail (i) the nature of the Claims factual basis for such claim, and Losses and, if known, the amount or an estimate of (ii) the amount of the Claims and Lossesclaim, if known or reasonably estimable. In Failure to give prompt notice shall not affect the event indemnification obligations hereunder except to the extent of actual prejudice.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have 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 30-day period (or any third partyagreed upon extension thereof) to the validity and amount of such claim, or if there is 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. If the Indemnifying Party affirmatively rejects such claim within such 30-day period, the Indemnified Party will be free to seek judicial or other enforcement of its rights to indemnification under this Agreement.
(c) With respect to any claim against by a third party available by virtue 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 circumstances defense of the Claims and Lossessuch claim, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties Indemnified Party shall have cooperate fully with the Indemnifying Party, subject to reimbursement for any reasonable concluded that there may be cost or expense incurred by the Indemnified Party as the result of a conflict between request by the positions Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of such parties in conducting the defense of any such actionthird-party claim, the indemnified party Indemnified Party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses defense of such counsel employed by the indemnified party shall be claim at its own expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying Indemnified Party reasonably determines in good faith that there exist actual or potential conflicts of interest that make representation by the same counsel inappropriate, the Indemnified Party shall be entitled to employ separate counsel (but not more than one per jurisdiction) at the expense and cost of the Indemnifying Party. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any such claim or demand unless (i) the settlement agreement contains a complete and unconditional general release by the third party asserting the claim to all Indemnified Parties affected by the claim, (ii) the settlement agreement does not contain any sanction or restriction upon the conduct of any business by the Indemnified Party or its Affiliates and (iii) any amounts owing from any Indemnified Party pursuant to such compromise or settlement are subject to full indemnification by the Indemnifying Party (which has acknowledged in writing its responsibility therefor and has demonstrated its financial ability to satisfy such obligation).
(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 or prosecution of a any third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified partyclaim, the indemnified party may settle Indemnifying Party shall be bound by the results obtained in good faith by the Indemnified Party with respect to such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties shall cooperate in the defense or prosecution thereof and shall furnish be liable for all costs and expenses of defending such recordsclaim incurred by Indemnified Party, information including fees and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewithdisbursements of counsel.
Appears in 1 contract
Procedures for Indemnification. An indemnified party hereunder 9.4.1. If any Indemnified Party determines in good faith that it is entitled to indemnification pursuant to this Section 9 and such Indemnified Party desires to seek an indemnification claim hereunder, the Indemnified Party shall notify give to the indemnifying party, in writing, Indemnifying Party and the Escrow Agent a written notice with respect thereto (a “Notice of any claim for indemnification, specifying Claim”) setting forth in reasonable detail the nature basis for such claim, and specifying the amount of the Claims and Losses andclaimed (which, if knownnot finally determined, may be a good faith estimate thereof) (the amount of Losses so claimed being hereinafter referred to as the “Indemnity Claim Amount”).
9.4.2. The Indemnifying Party may, within 15 days after receipt of any Notice of Claim, object to such Notice of Claim and dispute the claim in full or an estimate any Indemnity Claim Amount set forth in such Notice of Claim by delivery to the Indemnified Party and the Escrow Agent of written notice of such dispute (a “Dispute Notice”), setting forth in reasonable detail the basis for such dispute and the amount of the Claims Indemnity Claim Amount which the Indemnifying Party objects to being claimed by the Indemnified Party in respect of the Notice of Claim.
9.4.3. If the Indemnified Party does not receive a Dispute Notice that relates to a Notice of Claim within fifteen (15) days after the Indemnified Party delivers such Notice of Claim, the Escrow Agent will disburse to Purchaser, on behalf of all the Indemnified Parties, from the Escrow Consideration Shares a number of shares with a value, based on the Average Share Price as of the date of disbursement, equal to the Indemnity Claim Amount specified in such Notice of Claim within three (3) Business Days after the expiration of such 15-day period. If the Indemnified Party and Lossesthe Escrow Agent receive a Dispute Notice that relates to a Notice of Claim within fifteen (15) days after receipt of such Notice of Claim, the Escrow Agent (A) will, in respect of such Notice of Claim, disburse to Purchaser, on behalf of the Indemnified Parties, from the Escrow Consideration Shares a number of Consideration Shares with a value, based on the Average Share Price as of the date of disbursement, equal to the portion, if any, of the Indemnity Claim Amount specified in such Notice of Claim which is not objected to in such Dispute Notice within three Business Days after the receipt of such Dispute Notice, and (B) will not disburse to Purchaser from the Escrow Consideration Shares, any shares in respect of such portion of the Indemnity Claim Amount which is objected to in such Dispute Notice unless it has received either a joint notice of release signed by the Indemnifying Party and the Purchaser directing the Escrow Agent to deliver Escrow Consideration Shares with a value, based on the Average Share Price as of the date of delivery of such Escrow Consideration Shares, equal to all or any portion of such funds, which joint notice the parties agree to deliver to the Escrow Agent promptly following resolution of such Notice of Claim, or a final order by a court of competent jurisdiction or an arbitral award, which order or award is not subject to appeal (a “Purchaser Final Order”), directing the Escrow Agent to disburse to Purchaser, on behalf of all the Indemnified Parties, from the Escrow Consideration Shares, shares with a value, based on the Average Share Price as of the date of delivery of such Escrow Consideration Shares, equal to an amount set forth in such Purchaser Final Order.
9.4.4. In the event of a claim by any third party, or if there is any claim against a third party available by virtue that under the terms of the circumstances Escrow Agreement any Escrow Consideration Shares are due to be released from escrow while any dispute under Section 9.4.4 is pending, the number of Escrow Consideration Shares to be released from escrow shall be reduced by a number of Escrow Consideration Shares with a value, based on the Average Share Price as of the Claims date of release, equal to all Indemnity Claim Amounts pending at such time that are either subject to dispute or due to be disbursed to the Purchaser.
9.4.5. If it has been determined that any Indemnified Party is due Escrow Consideration Shares pursuant to Sections 9.2 and Losses9.4 hereof, the indemnifying party Indemnifying Party may assume elect to pay the defense value of the applicable Indemnity Claim Amount (or portion thereof) in immediately available funds (in U.S. dollars) by wire transfer no later than the prosecution thereof date on which release of the Escrow Consideration Shares for such Indemnity Claim Amount (or portion thereof) is required. The Indemnifying Party shall provide Purchaser and the Escrow Agent notice of its election to pay cash no later than five (5) days prior to the date on which release of Escrow Consideration Shares is due. If the Indemnifying Party breaches its obligation and does not make cash payment of such amount on the date so scheduled, Escrow Consideration Shares for the applicable Indemnity Claim Amount (or portion thereof) shall be released to Purchaser on the next day in accordance with the provisions of Section 9.
9.4.6. Prolink Amount Shares will be held in escrow only for the purposes described in this Section 9.4.6 and shall not serve for indemnification for any other matter under Section 9.2.1. At such time that USDATA or USDATA Sub pays any portion of the Prolink Amount in accordance with and at such time required by prompt the Prolink Agreement, Prolink Amount Shares in an amount equal to the amount so paid divided by the Average Share Price as of the date of payment shall be released from escrow to USDATA. In the event that any Prolink Amount due to be paid to Prolink is not paid by USDATA or USDATA Sub to Prolink as required under the Prolink Agreement, Prolink Amount Shares in an amount equal to the amount so defaulted, based on the Average Share Price as of the date of default will be disbursed to Purchaser. Notwithstanding anything to the contrary, the Prolink Amount Shares shall not be released to USDATA or Purchaser other than in accordance with this Section 9.4.6 and Section 9.4.7. In the event that the Prolink Amount Shares are not sufficient to indemnify Purchaser for any default in payment of the Prolink Amount then any excess damages shall be deemed to be an Excluded Liability. Notwithstanding anything to the contrary set forth herein, when the Prolink Amount has been paid in full by USDATA or any Affiliate of USDATA and written evidence of such payment has been provide to the Escrow Agent and the Purchaser, all Prolink Amount Shares remaining in escrow shall be released to USDATA.
9.4.7. At any time as USDATA or USDATA Sub pays a portion of the Prolink Amount in accordance with and at such time required by the Prolink Agreement, it shall provide the Escrow Agent and the Purchaser with written notice to indemnified party including the employment with respect thereto which notice shall be deemed a Notice of counsel or accountantsClaim under Section 9.4.1. Purchaser may, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense within 15 days after receipt of any such actionnotice, dispute such notice and give to USDATA and the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party Escrow Agent a written notice with respect thereto which notice shall be deemed a Dispute Notice under Section 9.4.2. In addition, Purchaser may also provide the Seller and the Escrow Agent a written notice at its expenseany time requesting that Prolink Amount Shares be disbursed to the Purchaser in accordance with Section 9.4.6 above, if Purchaser determines in good faith that USDATA or USDATA Sub is in default under the Prolink Agreement, which notice shall be deemed a Notice of Claim under Section 9.4.1. The indemnifying party shall not be liable for any settlement and USDATA may, within 15 days after receipt of any such Claims notice, dispute such notice and Losses effected without its prior give to the Purchaser and the Escrow Agent a written consent, notice with respect thereto which notice shall not be unreasonably withheld; provided that if deemed a Dispute Notice under Section 9.4.2. All such notices and disputes with respect to the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party Prolink Amount Shares shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties shall cooperate be dealt with in the defense or prosecution thereof and shall furnish such recordssame manner provided for in Section 9.4.1 through 9.4.4, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewithmutatis mutandis.
Appears in 1 contract
Sources: Asset Purchase Agreement (USDATA Liquidating Trust)
Procedures for Indemnification. An indemnified party hereunder shall notify The Principal Shareholder will have the indemnifying partyright to control, in writingat his own cost, the defense of any claim for indemnificationactions, specifying suits or proceedings that may result in reasonable detail indemnity pursuant to Section 5 (an “Excess Price Proceeding”) with counsel reasonably satisfactory to the nature of Company. If the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may Principal Shareholder does not elect to assume the defense or control of an Excess Price Proceeding within three (3) days after the prosecution thereof by prompt written notice commencement of any such Excess Price Proceeding, then the Company will assume and have the right to indemnified party including the employment of counsel or accountantscontrol, at its cost and expense; providedown cost, howeverthe defense of any Excess Price Proceeding. If the Company controls the defense of any Excess Price Proceeding, if the defendants in any such action include both Company shall (a) obtain the indemnifying party and written consent of the indemnified party and such parties shall have reasonable concluded that there may be a conflict between Principal Shareholder to the positions selection of such parties in conducting legal counsel to the Company for the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, claims (which consent shall not be unreasonably withheld; provided that if , delayed or conditioned), (b) reasonably consult, and cause the indemnifying party does Company’s legal counsel to reasonably consult, with the Principal Shareholder and its legal counsel regarding such defense upon the Principal Shareholder’s reasonable request, (c) keep the Principal Shareholder and its legal counsel reasonably informed of any material developments in such action, suit or proceeding, and (d) prior to compromising or settling any Excess Price Proceeding, obtain the prior written consent of the Principal Shareholder (which consent will not assume the defense be unreasonably withheld, delayed or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consentconditioned). The indemnifying party shall not agree Company will have the right, at its own expense, to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses engage legal counsel to so defend or prosecute such claim, both parties shall cooperate participate in the defense of such action, suit or prosecution thereof and proceeding. If the Principal Shareholder controls the defense of any Excess Price Proceeding, the Principal Shareholder shall furnish (a) obtain the written consent of the Company to the selection of legal counsel to the Principal Shareholder for the defense of any such recordsclaims (which consent shall not be unreasonably withheld, information and testimonydelayed or conditioned), (b) reasonably consult, and attend cause his legal counsel to reasonably consult, with the Company and its legal counsel regarding such conferencesdefense upon the Company’s reasonable request, discovery proceedings(c) keep the Company and its legal counsel reasonably informed of any material developments in such action, hearingssuit or proceeding, trials and appeals(d) prior to compromising or settling any Excess Price Proceeding, obtain the prior written consent of the Company (which consent will not be unreasonably withheld, delayed or conditioned). The Company will give the Principal Shareholder written notice of all claims for indemnification under this Agreement and the amount of such claims promptly upon their determination, provided that the failure to provide any such notice shall not prejudice the rights of the Company to indemnification hereunder. All such claims shall be satisfied by the Principal Shareholder by payment of such obligation directly to the current or former shareholder of the Company entitled to such indemnifiable amount within five business days of receipt of such notice by wire transfer of immediately available funds to an account or accounts specified by such current or former shareholder, or at such other time and in such other manner as may otherwise be reasonably requested provided in connection therewithany final Order not subject to further appeal or any final binding settlement agreement.
Appears in 1 contract
Sources: Funding and Indemnification Agreement (Jingwei International LTD)
Procedures for Indemnification. An indemnified (a) No Seller Indemnifying Party shall be liable for any claim for indemnification under this Article VII unless written notice of a claim for indemnification is delivered by the Purchaser Indemnified Party seeking indemnification to the Seller Indemnifying Party from whom indemnification is sought prior to the expiration of any applicable survival period set forth in Section 7.01 (in which event the claim shall survive until finally and fully resolved). If any third party hereunder notifies the Purchaser Indemnified Party with respect to any matter which may give rise to a claim for indemnification (a “Third Party Claim”) against the Seller Indemnifying Party under this Article VII, then the Purchaser Indemnified Party shall notify the indemnifying party, Seller Indemnifying Party reasonably promptly thereof in writing; provided, that no delay on the part of the Purchaser Indemnified Party in notifying the Seller Indemnifying Party shall relieve the Seller Indemnifying Party from any claim for indemnification, specifying in obligation hereunder except to the extent that the Seller Indemnifying Party is actually and materially prejudiced thereby. All notices given pursuant to this Section 7.05(a) shall describe with reasonable detail specificity the nature of the Claims and Losses andclaim, if known, the amount or an estimate of the amount of the Claims claim (to the extent then known) and Losses. In the event basis of the Purchaser Indemnified Party’s claim for indemnification.
(b) Following receipt of notice in accordance with Section 7.05(a) (other than a notice of a Third Party Claim against the Purchaser Indemnified Party, in which case Section 7.05(c) below shall apply), the Seller Indemnifying Party shall have thirty (30) days from the date it receives such notice (the “Dispute Period”) to make such investigation of the claim as the Seller Indemnifying Party deems necessary or desirable. For purposes of such investigation, the Purchaser Indemnified Party shall make available to the Seller Indemnifying Party all the material information related to such claim relied upon by or in possession or control of, the Purchaser Indemnified Party; provided, that such Purchaser Indemnified Party shall not be required to violate any third partyGovernmental Order or any applicable Law to which it is subject or to waive any attorney-client privilege or work product doctrine which any of them may possess or that may otherwise apply to such information. If the Seller Indemnifying Party disagrees with the validity or amount of all or a portion of such claim made by the Purchaser Indemnified Party, the Seller Indemnifying Party shall deliver to the Purchaser Indemnified Party written notice thereof (the “Dispute Notice”) prior to the expiration of the Dispute Period. If no Dispute Notice is received by the Purchaser Indemnified Party within the Dispute Period or the Seller Indemnifying Party provides notice that it does not have a dispute with respect to such claim, such claim shall be deemed approved and consented to by the Seller Indemnifying Party (such claim, an “Approved Indemnification Claim”). If a Dispute Notice is received by the Purchaser Indemnified Party within the Dispute Period and the Purchaser Indemnified Party and the Seller Indemnifying Party do not agree to the validity and/or amount of such disputed claim, no payment shall be made until such disputed claim is resolved, whether by adjudication of such matter, agreement between the Purchaser Indemnified Party and the Seller Indemnifying Party, or if there is otherwise (and upon any such resolution, such claim against shall be deemed to be an Approved Indemnification Claim). Each Approved Indemnification Claim shall be paid by Sellers or Parent and Purchaser, as applicable, no later than five (5) Business Days after the date on which the subject claim became an Approved Indemnification Claim, in each case by wire transfer of immediately available funds to the account designated in writing by the party entitled to such payment.
(c) After the Purchaser Indemnified Party has given notice of a third party available by virtue of Third Party Claim to the circumstances of the Claims and LossesSeller Indemnifying Party pursuant to Section 7.05(a), the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountantsSeller Indemnifying Party may, at its cost election, undertake and conduct the defense of such Third Party Claim at its own expense; provided, howeverthat the Seller Indemnifying Party fully acknowledges in writing its indemnification obligations to the Purchaser Indemnified Party. In such case, if the defendants Purchaser Indemnified Party may continue to participate in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions defense of such parties in conducting Third Party Claim. If the Seller Indemnifying Party assumes the defense of any Third Party Claim, and unless (i) such actionsettlement or consent to judgment does not impose or purport to impose any obligation or restriction on such Purchaser Indemnified Party or any of its Affiliates or any action or restrictions upon the conduct of the businesses of the Purchaser Indemnified Party or any of its Affiliates, (ii) the Purchaser Indemnified Party receives a full release of and from any other claims that may be made against the Purchaser Indemnified Party in connection with such Third Party Claim, (iii) the sole relief provided is monetary damages that are paid in full by the Seller Indemnifying Party, and (iv) there is no finding or admission of any violation by the Purchaser Indemnified Party of any applicable Law or any rights of any Person, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party Seller Indemnifying Party shall not be liable for any settlement settle or consent to judgment with respect to such Third Party Claim without the written consent of any such Claims and Losses effected without its prior written consentthe Purchaser Indemnified Party, which consent shall not be unreasonably withheld; provided that if , conditioned or delayed. Notwithstanding anything to the indemnifying party does contrary, the Seller Indemnifying Party shall not be entitled to assume the administration and defense of any Third Party Claim if: (i) the Seller Indemnifying Party has failed to assume the defense or prosecution of a third-party claim as provided above such Third Party Claim within thirty (30) Days after days of the Purchaser Indemnified Party’s delivery of notice of such Third Party Claim to the Seller Indemnifying Party, (ii) the aggregate amount reasonably expected to be incurred in connection with such Third Party Claim and all other outstanding claims on the RWI Indemnity Escrow Funds exceeds 150% of the remaining amount of the RWI Indemnity Escrow Funds, (iii) such Third Party Claim involves criminal or quasi-criminal allegations, (iv) the Third Party Claim includes a claim for injunctive relief, or (v) any Seller is the Seller Indemnifying Party and (A) Purchaser or the Insurer is required to assume the defense of the Third Party Claim pursuant to the terms thereof from or (B) any Seller’s assumption of the indemnified party, defense of the indemnified party may settle such claim without Third Party Claim would reasonably be expected to cause a Purchaser Indemnified Party to lose coverage under the indemnifying party’s consentR&W Insurance Policy. The indemnifying party Purchaser Indemnified Party and the Seller Indemnifying Party shall not agree render to a settlement each other such assistance as may reasonably be required of each other in order to ensure proper and adequate defense of any Claims and Losses which provides for any relief other than Third Party Claim subject to this Section 7.05. To the payment of monetary damages extent that the Purchaser Indemnified Party or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or Seller Indemnifying Party does not the indemnifying party chooses to so defend or prosecute such claim, both parties shall cooperate participate in the defense of a particular Third Party Claim, the Person so proceeding with such Third Party Claim shall keep the other Person informed of all material developments and events relating to such Third Party Claim. No Purchaser Indemnified Party shall settle or prosecution thereof and consent to judgment with respect to any Third Party Claim for which the Seller Indemnifying Party has provided a written acknowledgement of its indemnification obligations to the Purchaser Indemnified Party without the written consent of the Seller Indemnifying Party, which consent shall furnish such recordsnot be unreasonably withheld, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewithconditioned or delayed.
Appears in 1 contract
Sources: Unit Purchase and Sale Agreement (Local Bounti Corporation/De)
Procedures for Indemnification. An indemnified (a) A claim for indemnification under Section 8 (an “ Indemnification Claim”) shall be made by a party hereunder shall notify by delivery of a written declaration to the indemnifying partyother party requesting indemnification and specifying the basis on which indemnification is sought and the amount of asserted Losses and, in writingthe case of a Third Party Claim (as defined in Section 10(d) hereof), containing such other information as the party seeking indemnity shall have concerning such Third Party Claim.
(b) If the Indemnification Claim involves a Third Party Claim, the procedures set forth in Section 10(d) hereof shall be observed by the parties.
(c) If the Indemnification Claim involves a matter other than a Third Party Claim, the party to provide indemnity shall have twenty (20) business days to object to such Indemnification Claim by delivery of any claim for indemnification, a written notice of such objection to the party seeking indemnity specifying in reasonable detail the nature basis for such objection. Failure to timely so object shall constitute acceptance of the Claims Indemnification Claim by the party to provide indemnity.
(d) Should any claim be made, or suit or proceeding be instituted against a party by a third party which, if prosecuted successfully, would be a matter for which the party is entitled to indemnification under this Agreement (a “ Third Party Claim”), the obligations and Losses liabilities of the parties hereunder with respect to such Third Party Claim shall be subject to the following terms and conditions:
(i) The party seeking indemnity shall give to the party to provide indemnity written notice of any such claim promptly after receipt by the party seeking indemnity of notice thereof, and the party to provide indemnity will undertake the defense thereof by representatives of such party’s (or its insurer’s) choosing. The assumption of the defense of any such claim by the party to provide indemnity shall be an acknowledgment by the party to provide indemnity of its obligation to indemnify the party seeking indemnity with respect to such claim hereunder. The party seeking indemnity shall be entitled to participate with the party to provide indemnity in the defense of such matters at its own expense. If the party to provide indemnity fails or refuses to undertake the defense of such claim within twenty (20) business days after written notice of such claim has been given to the party to provide indemnity by the party seeking indemnity, the party seeking indemnity shall have the right to undertake the defense, compromise and, if knownsubject to Section 10(e), settlement of such claim with counsel of its own choosing. In the circumstances described in the preceding sentence, the amount or an estimate party seeking indemnity shall promptly, upon its assumption of the amount defense of such claim, make an Indemnification Claim as specified in Section 10(a).
(ii) Buyer and Seller shall reasonably cooperate with each other in connection with the Claims and Lossesdefense of any Third Party Claim.
(e) No settlement of a Third Party Claim involving the asserted liability of any party under this Section 10 shall be made without the prior written consent of such party, which consent shall not be unreasonably withheld or delayed. In the event of a claim by any third partydispute regarding the reasonableness of any proposed settlement, or if there is any claim against a third (i) the party available by virtue of to provide indemnity shall make the circumstances of final determination in respect thereto in cases in which the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting provide indemnity has assumed the defense of any such actionclaim pursuant to Section 10(d)(i), the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party which determination shall be at its expense. The indemnifying party shall not be liable for final and binding on all parties, or (ii) with regard to any dispute regarding the reasonableness of any proposed settlement of any such Claims and Losses effected without its prior written consentclaim, which shall not be unreasonably withheld; provided that if the indemnifying party to provide indemnity does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties the advisability and terms of any such settlement shall cooperate in be a matter for 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 therewithgood faith determination of the party seeking indemnity.
Appears in 1 contract
Sources: Purchase Agreement (American Commercial Lines Inc.)
Procedures for Indemnification. An indemnified (a) If a claim is made by any Taxing authority, which, if successful, might result in an indemnity payment by a party hereunder ("Tax Indemnitor") to another ("Tax Indemnitee") pursuant to Section 14.2, Tax Indemnitee shall promptly notify the indemnifying partyTax Indemnitor in writing of such claim (a "Tax Claim"). If notice of a Tax Claim is not given to Tax Indemnitor within a sufficient period of time to allow Tax Indemnitor to effectively contest such Tax Claim, in writing, of any claim for indemnification, specifying or in reasonable detail to apprise Tax Indemnitor of the nature of the Claims Tax Claim, in each case taking into account the facts and Losses circumstances with respect to such Tax Claim, Tax Indemnitor shall not be liable to Tax Indemnitee to the extent that Tax Indemnitor's ability to effectively contest such Tax Claim is actually prejudiced as a result thereof
(b) With respect to any Tax Claim for which Tax Indemnitor has acknowledged its responsibility hereunder in writing, Tax Indemnitor shall control at its own expense all proceedings taken in connection with such Tax Claim (including selection of counsel) and, if knownwithout limiting the foregoing, may in its sole discretion pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any Taxing authority with respect thereto and may, in its sole discretion, either pay the amount Tax claimed and ▇▇▇ for a refund where applicable law permits such refund suits or an estimate of contest the amount of the Claims and Losses. In the event of a claim by Tax Claim in any third partypermissible manner, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party Tax Indemnitor shall not be liable for any settlement of any such Claims settle or compromise a Tax Claim without giving a 30-day notice to Tax Indemnitee and Losses effected without its prior written Tax Indemnitee's consent, which shall not be unreasonably withheld; provided that , if the indemnifying party does not assume the defense such settlement or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree compromise could reasonably be expected to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or an adverse effect on the business Tax liabilities of Tax Indemnitee or financial condition members of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties its affiliated group for any Taxable period.
(c) Purchaser and Seller shall cooperate with each other in contesting any Tax Claim, which cooperation shall include granting powers of attorney to the defense party who is entitled to control the proceedings, retaining and providing records and information that are reasonably relevant to such Tax Claim, and making employees available on a mutually convenient basis to provide additional information or prosecution thereof explanation of any material provided hereunder or to testify at proceedings relating to such Tax Claim.
(d) Any indemnification payments hereunder shall be treated as an adjustment to Purchase Price, unless otherwise required by applicable law.
(e) The covenants and indemnification obligations of this Article XIV shall survive the Closing and shall furnish such records, information not expire and testimony, shall not be subject to the conditions and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested limitations contained in connection therewithArticle XIII.
Appears in 1 contract
Sources: Non Solicitation and Referral Agreement (Greenpoint Financial Corp)
Procedures for Indemnification. An Promptly after receipt by an indemnified party under this Section 7 of notice of any claim, the commencement of any action, or the discovery of any facts or circumstances which could reasonably result in, if not attended to, a claim or commencement of any action, the indemnified party shall, if a claim in respect thereof is to be or may be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the claim, the commencement of that action or state of facts or circumstances; provided that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to the indemnified party except to the extent that such failure to notify shall materially prejudice the indemnifying party. If any such claim shall be brought against an indemnified party, it shall notify the indemnifying party thereof and the indemnifying party shall be entitled, subject to the provisions hereinafter set forth, to control the indemnified party's defense, settlement or other disposition of any such claim with counsel reasonably satisfactory to the indemnified party so long as the indemnifying party acknowledges their indemnity obligation in writing to such indemnified party. With respect to any such claim relating solely to the payment of money damages and no public admission of guilt or liability and which will not result in the indemnified party's becoming subject to injunctive or other relief or otherwise adversely affect the business of the indemnified party in any manner (it being understood that a confidential settlement involving solely the payment of monetary damages will not be deemed to "adversely" affect the business), and as to which the indemnifying party shall have acknowledged in writing the obligation to indemnify the indemnified party hereunder subject to the Deductible (as defined in Section 7.4(b)), the indemnifying party shall notify have the sole right to defend, settle or otherwise dispose of such claim, on such terms as the indemnifying party, in writingits sole discretion, of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expenseshall deem appropriate; provided, however, if the defendants in any such action include both that the indemnifying party and shall obtain the written consent of the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that , prior to ceasing to defend, settling or otherwise disposing of any such claim if as a result thereof the indemnified party would become subject to injunctive or other equitable relief or the business of the indemnified party would be adversely affected in any manner. After notice from the indemnifying party does not to the indemnified party of its election to assume the defense of such claim or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified partyaction, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not be liable to the indemnified party under this Section 7 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation. The parties each agree to render to the other parties such assistance as may reasonably be requested in order to insure the proper and adequate defense of any such claim or proceeding. Sellers agree that in connection with any defense of a claim relating to the Business that they shall not agree to any settlement that could reasonably be expected to adversely affect the Business without the prior written consent of Buyer which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Buyer shall have the right to appoint counsel at Buyer's expense to represent Buyer's interests and to serve as co-counsel of record in any claim pending against Sellers or that is asserted against Sellers and arises from acts that occurred prior to the Closing Date; provided that in such instance Buyer and counsel for Buyer shall not be entitled to prevent Sellers' counsel from taking any actions that are otherwise permitted under this Agreement. Legal counsel for Sellers and Buyer shall consult in advance on the terms and placement of any retraction that Sellers propose in connection with the settlement of any Claims pending or threatened litigation or request for correction ("Retraction"). In the event that Buyer withholds consent to Sellers' timely request that Buyer publish a Retraction that is consistent with Sellers' or Buyer's past practices (including with respect to the terms, location and Losses frequency with which provides such Retractions have been published), Buyer shall be responsible for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition incremental cost, if any, to Seller of the indemnified party without refusal to publish such Retraction. For this purpose, the indemnified party’s prior written consentincremental cost to Seller shall be defined to mean (i) the cost of any damage award that would have been barred by statute if the Retraction had been published (the "Barred Award") that is not covered by insurance proceeds or, (ii) in the event that the total cost of the case exceeds the applicable insurance deductible, the total cost of the case (including legal fees) not covered by insurance proceeds multiplied by a fraction, the numerator of which is the Barred Award, if any, and the denominator of which is the total cost of the case (including legal fees). Whether or not the indemnifying party chooses With respect to so defend or prosecute such claimcases, both parties Buyer and Sellers shall cooperate in good faith to dispose of such cases on a mutually satisfactory basis; provided that Buyer may require the defense or prosecution thereof and settlement of any particular case if Buyer agrees to pay 50% of the cost of such settlement (the "Mandatory Settlement") in addition to Buyer's obligation to indemnify Sellers, if any, in respect of Sellers' portion of any Mandatory Settlement in accordance with the provisions of Section 7.2(iii). Notwithstanding the foregoing, no indemnity payment shall furnish be due from Sellers to Buyer for any Taxes pursuant to Section 7.1 (an "Indemnifiable Tax") if Sellers contest such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appealsIndemnifiable Tax pursuant to Section 6.2 in a Tax Proceeding and, as may a result of such Tax Proceeding, GCC's or Buyer's obligation to pay such Indemnifiable Tax is stayed pending the outcome of such Tax Proceeding. The Sellers shall be reasonably requested obligated to pay such Indemnifiable Tax pursuant to Section 7.1 upon the earlier of the resolution of the Tax Proceeding or the termination of the stay. Nothing contained in connection therewiththis Section 7.3 shall require a procedure with respect to Tax-related indemnification contrary to the procedures set forth in Section 6.2.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (American Media Operations Inc)
Procedures for Indemnification. An (a) If a claim by a third party is threatened or made against an indemnified party, and the indemnified party hereunder intends to, or determines that it may have the right to seek indemnity against such claim pursuant to this Article IX, the indemnified party shall notify the indemnifying party, in writing, party of any such claim for indemnification, specifying in reasonable detail the nature within thirty (30) days of the Claims and Losses and, if known, the amount or an estimate becoming aware of the amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expensesuch claim; provided, however, if that the defendants failure to provide such notice shall not release the indemnifying party from any of its obligations under this Article IX except to the extent the indemnifying party is materially prejudiced by such failure. Such notice shall include full particulars concerning such claim and shall refer to the terms of this Agreement in any respect of which such action include both right of indemnification is claimed or may arise.
(b) If, within ten (10) Business Days of the receipt of such notice from the indemnified party, the indemnifying party acknowledges in writing its obligation to indemnify the indemnified party hereunder against and with respect to such claim, the indemnifying party shall be entitled to undertake, conduct and control the defense of such claim, through counsel of its own choosing, and at the indemnifying party’s expense. In such event: (i) the indemnifying party shall permit the indemnified party to participate in such defense through counsel chosen by the indemnified party, provided that the fees and expenses of such counsel shall be borne by the indemnified party unless the indemnifying party and the indemnified party are both defendants to an action and such parties shall have reasonable concluded that there may be the counsel selected by the indemnifying party has a conflict between of interest because of the positions availability of different defenses to the indemnified party and the indemnifying party, in which case the reasonable fees and expenses of one separate counsel shall also be paid by the indemnifying party; and (ii) the indemnified party shall cooperate fully and shall cause its Representatives to cooperate fully with the indemnifying party in connection with such defense. The indemnifying p▇▇▇▇ shall not, without the written consent of the indemnified party, which consent shall not be unreasonably withheld or delayed: (i) pay, settle or compromise any such claim or consent to the entry of any judgment which does not include as an unconditional and irrevocable term thereof the delivery by the claimant or plaintiff to the indemnified party of a written release from all liability in respect of such parties claim; or (ii) pay, settle or compromise any such claim in conducting any manner that may adversely affect the indemnified party; provided that, the indemnifying party may pay, settle or compromise a claim if the sole remedy sought is the payment of money and the indemnifying party agree to make such payment. Similarly, so long as the indemnifying party is reasonably contesting any such claim in good faith, the indemnified party shall not pay, settle or compromise any such claim or consent to the entry of any judgment without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
(c) If the indemnifying party does not deliver the acknowledgment described in clause (b) above within the required ten (10) Business Day period, or if the indemnifying party delivers such acknowledgment within such period but fails to undertake such defense promptly or to maintain the defense of any such actionclaim, the indemnified party shall have the right to select separate legal counsel to assume contest, pay, settle or compromise such defense and otherwise participate claim in such action the exercise of its reasonable judgment at the expense of the indemnifying party’s expense. The indemnified .
(d) Any indemnifiable claim that is not a third-party claim shall have the right be asserted by written notice to employ counsel separate from counsel employed by the indemnifying party in any such action and to participate therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expenseparty. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if If the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above respond to such notice within thirty (30) Days after notice thereof from days, it shall have no further right to contest the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement validity of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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.
Appears in 1 contract
Sources: Production Agreement (International Spirits & Beverage Group, Inc.)
Procedures for Indemnification. An indemnified (a) If a party hereunder shall notify the indemnifying party, in writing, of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount entitled to indemnification under this Article 10 (an “Indemnitee”) asserts that a party obligated to indemnify it under this Article 10 (an “Indemnitor”) has become obligated to such Indemnitee pursuant to Section 10.2 or an estimate of the amount of the Claims and Losses. In the event of a claim by any third party10.3, or if there any suit, action, investigation, claim or proceeding is any claim against begun, made or instituted as a third party available by virtue result of which the circumstances of the Claims and LossesIndemnitor may become obligated to an Indemnitee under Section 10.2 or 10.3, the indemnifying party may assume the defense or the prosecution thereof by such Indemnitee shall give prompt written notice thereof to indemnified party including the employment of counsel or accountants, at its cost and expenseIndemnitor; provided, however, if that the defendants in failure of the Indemnitee to give notice to the Indemnitor shall not release the Indemnitor of its indemnification obligations hereunder, except to the extent the Indemnitor shall have been prejudiced by such failure. The Indemnitor shall have the right, but not the obligation, to defend, contest or otherwise protect the Indemnitee against any such action include both suit, action, investigation, claim or proceeding at its sole cost and expense. If the indemnifying party Indemnitor so elects to defend, contest or otherwise protect the Indemnitee, the Indemnitee shall (i) make available to the Indemnitor all relevant books and records in its possession and (ii) cooperate and assist the indemnified party and such parties Indemnitor to the extent reasonably possible. The Indemnitee shall have reasonable concluded that there may be a conflict between the positions of such parties right, but not the obligation, to participate at its own expense in conducting the defense thereof by counsel of any the Indemnitee’s choice. If the Indemnitor fails to defend, contest or otherwise protect against such suit, action, investigation, claim or proceeding, the indemnified party Indemnitee shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. The indemnified party shall have do so, including, without limitation, the right to employ counsel separate from counsel employed by make any compromise or settlement thereof, and the indemnifying party in any such action and to participate therein, but the fees and expenses of such counsel employed by the indemnified party Indemnitee shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if entitled to recover the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice entire cost thereof from the indemnified partyIndemnitor, including, without limitation, reasonable attorneys’ fees, disbursements and amounts paid as the indemnified party may settle result of such suit, action, investigation, claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithproceeding.
Appears in 1 contract
Procedures for Indemnification. An indemnified (a) If a party entitled to indemnification under this Section 11 (an “Indemnified Party”) asserts that it has suffered or incurred a Loss for which it is entitled to indemnification or that a party obligated to indemnify it has become obligated to such Indemnified Party, or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnified Party may become entitled to indemnification or a party obligated to indemnify it has become obligated to an Indemnified Party, such Indemnified Party shall give prompt written notice to (i) in the case of a claim for indemnification pursuant to Section 11.2(a), the applicable Seller against whom such claim is asserted, (ii) in the case of a claim for indemnification pursuant to Section 11.2(b), the Seller Representative, and (iii) in the case of a claim for indemnification pursuant to Section 11.3, the Buyer (each such person, an “Indemnifying Party”). No delay in delivering such written notice to the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder shall notify or prevent the indemnifying party, Indemnifying Party from recovering in writing, respect of any claim for indemnificationindemnification pursuant to and in accordance with this Section 11 unless, specifying and then solely to the extent that, the Indemnifying Party is actually and materially prejudiced thereby. Such notice by the Indemnified Party will describe the claim giving rise to an obligation of indemnification in reasonable detail and will indicate the nature estimated amount, if reasonably practicable, of the Claims and Losses and, if knownLoss that has been or may be sustained by the Indemnified Party. Thereafter, the amount or an estimate Indemnified Party will deliver to the Indemnifying Party, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to such claim. Within thirty (30) days after delivery of a notice pursuant to this Section 11.5 (the “Response Period”), the Indemnifying Party shall deliver to the Indemnified Party a written response to such notice. If, during the Response Period, the Indemnifying Party delivers a written notice disputing the Indemnified Party’s entitlement to indemnification of the amount Losses described in such notice, the parties shall use their reasonable best efforts to settle such disputed matters within thirty (30) days following the expiration of the Claims Response Period. The parties hereto acknowledge and Lossesagree that the Federal Rules of Evidence Rule 408 (and any similar state laws) shall apply to all offers to compromise made by the parties hereto during any such negotiations and any subsequent dispute arising therefrom. If the parties are unable to reach agreement within such thirty (30)-day period, the dispute may be resolved by any legally available means consistent with the provisions of Section 15.2.
(b) This Section 11.5(b) shall apply to any suit, action, investigation, claim or proceeding asserted by a third party against an Indemnified Party (a “Third-Party Claim”). In the event an Indemnified Party has written notice of a claim Third-Party Claim, such Indemnified Party shall notify the Indemnifying Party in writing (and in reasonable detail regarding) the Third-Party Claim promptly (and in any event, within ten (10) Business Days) after receipt by any third party, or if there is any claim against a third party available by virtue such Indemnified Party on written notice of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expenseThird-Party Claim; provided, however, if that failure to give such notification shall not affect any rights of the defendants in any Indemnified Party under this Agreement except to the extent the Indemnifying Party shall have been materially prejudiced as a result of such action include both failure. Thereafter, the indemnifying party Indemnified Party and the indemnified party Indemnifying Party shall promptly deliver following receipt thereof, a copy of all material written notices and such parties documents (including court papers) received by either of them relating to the Third-Party Claim. If a Third-Party Claim is made against an Indemnified Party, the Indemnifying Party shall have reasonable concluded that there may be a conflict between entitled to participate in the positions defense thereof and, if it so chooses, upon written notice given to the Indemnified Party within twenty (20) days of the receipt of the Indemnifying Party of the notice of such parties in conducting Third-Party Claim (or, if sooner, the date that is ten (10) Business Days prior to the time any response to such Third-Party Claim is required), assume and control the defense thereof with counsel selected by the Indemnifying Party and not reasonably objected to by the Indemnified Party. Should the Indemnifying Party so elect to assume the defense of any such actiona Third-Party Claim, the indemnified party 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, unless (i) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, (ii) the Indemnified Party shall have been advised by counsel that the assumption of such defense by the Indemnifying Party would be inappropriate due to an actual or potential conflict of interest, or (iii) the Indemnified Party shall have been advised by counsel that one or more defenses are available to the Indemnified Party that are not available to the Indemnifying Party (provided that the Indemnifying Party shall not be liable for the fees and expenses of more than one firm of counsel for all Indemnified Parties, other than local counsel). If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. The indemnified party shall have the right defense thereof and to employ at its own expense (except as provided in the immediately preceding sentence) counsel not reasonably objected to by the Indemnifying Party, separate from the counsel employed by the indemnifying party in Indemnifying Party, it being understood that the Indemnifying Party shall control such defense and shall be empowered to make any settlement with respect to such action and Third-Party Claim, subject to participate therein, but the remaining terms of this Section 11.5(b). The Indemnifying Party shall be liable for the reasonable fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable Indemnified Party for any settlement of any such Claims and Losses effected without its prior written consent, period during which shall the Indemnifying Party has not be unreasonably withheld; provided that if the indemnifying party does not assume assumed the defense or prosecution thereof (other than during any period in which the Indemnified Party shall have failed to give notice of a thirdThird-party claim Party Claim as provided above within thirty (30) Days after notice thereof from above). In connection with any Third-Party Claim, all the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties shall cooperate and shall cause their Affiliates to reasonably cooperate in the defense or prosecution thereof thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third-Party Claim, and making employees available on any basis reasonably requested by the Indemnifying Party to provide additional information and explanation of any material provided hereunder or otherwise relating to the Third-Party Claim, provided, however, that (x) the Indemnified Party shall not be required to produce any records or information (1) that may constitute privileged attorney-client communications and the transfer of which, or the provision of access to which, as reasonably determined by the Indemnified Party’s counsel, would reasonably be expected to constitute a waiver of any such privilege or (2) if the provision of access to such document (or applicable portion thereof) or information, as determined by the Indemnified Party’s counsel, would reasonably be expected to conflict with Applicable Laws (provided that the Indemnified Party shall use reasonable best efforts to allow for such access in a manner that does not result in the events set out in the preceding clauses (1) and (2) (including (if applicable) executing a common interest agreement with respect to such information)) and (y) any reasonable out-of-pocket costs or expenses incurred by the Indemnified Party in connection with any such cooperation shall be borne solely by the Indemnifying Party and reimbursed to the Indemnified Party. Whether or not the Indemnifying Party assumes the defense of a 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 or delayed), unless the Indemnified Party reasonably determines that a failure to admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim may result in a Governmental Entity initiating or continuing to pursue an Action against the Indemnified Party or any of its Affiliates, which if such Action were successful, would reasonably be expected to be materially detrimental to the Person against which such Action were to be initiated. If the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnifying Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the prior written consent of the Indemnified Party, unless such admission, settlement, compromise or discharge (1) obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third-Party Claim, (2) releases the Indemnified Party completely in connection with such Third-Party Claim, (3) does not contain any admission of wrongdoing or misconduct by the Indemnified Party and (4) does not involve any injunction or other equitable relief or relief for other than money damages against the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third-Party Claim (and shall furnish be liable for the reasonable fees and expenses of counsel incurred by the Indemnified Party in defending such recordsThird-Party Claim) if (i) such Third-Party Claim seeks an order, information and testimonyinjunction or other equitable relief or relief for other than money damages against the Indemnified Party or its Affiliates, and attend (ii) such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested Third-Party Claim relates to or arises in connection therewithwith any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation against the Indemnified Party; (iii) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such Third-Party Claim; or (iv) such Third-Party Claim has been brought by a Governmental Entity.
(c) To the extent of any conflict between Section 10.2(b) and this Section 11.5, Section 10.2(b) shall govern.
Appears in 1 contract
Procedures for Indemnification. (a) An indemnified party hereunder Indemnification Claim shall notify be made by the indemnifying partyIndemnitee by delivery of a written notice to the Indemnitor Representative requesting indemnification and specifying the basis on which indemnification is sought and the amount of Losses claimed and, in writingthe case of a Third Party Claim, containing (by attachment or otherwise) such other information as the Indemnitee shall have concerning such Third Party Claim.
(b) If the Indemnification Claim involves a Third Party Claim, the procedures set forth in Section 8.4 hereof shall be observed by the Indemnitee and the Indemnitor Representative.
(c) If the Indemnification Claim involves a matter other than a Third Party Claim, the Indemnitor Representative shall have sixty (60) days to object to such Indemnification Claim by delivery of any claim for indemnification, a written notice of such objection to the Indemnitee specifying in reasonable detail the nature basis for such objection. Failure to timely so object shall constitute a final and binding acceptance of the Claims Indemnification Claim by the Indemnitor Representative, and Losses andthe Indemnification Claim shall be paid in accordance with Section 8.3(d) hereof. If an objection is timely interposed by the Indemnitor Representative, if knownand the dispute is not resolved by the Indemnitee and the Indemnitor Representative within forty-five (45) days from the date the Indemnitee receives such objection or such longer period as the Indemnitee and Indemnitor Representatives may agree, the amount or an estimate such dispute shall be resolved by arbitration as provided in Article 9 of this Agreement.
(d) Upon determination of the amount of an Indemnification Claim whether by agreement between the Claims Indemnitor Representative and Losses. In the event of a claim Indemnitee or by an arbitration award or by any third partyother final adjudication, or if there is any claim against a third party available by virtue the amount of such Indemnification Claim shall be paid within ten (10) days of the circumstances date such amount is determined. If the Indemnitor responsible for payment of such Indemnification Claim is Purchaser, such payment shall be made by wire transfer by Purchaser to ▇▇▇▇. If the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment Indemnitors responsible for payment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party Indemnification are ▇▇▇▇ and the indemnified party and Seller, such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party payment shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree made by wire transfer by ▇▇▇▇ to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, both parties 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 therewithPurchaser.
Appears in 1 contract
Procedures for Indemnification. An indemnified party hereunder (a) All claims for indemnification by any Indemnified Party under this Article IX shall be asserted and resolved as follows:
(i) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under this Article IX is asserted against or sought to be collected from such Indemnified Party by a Person other than a Party or an Affiliate thereof (a “Third Party Claim”), the Indemnified Party shall deliver a written notification, enclosing a copy of all papers served, if any, and specifying the nature of and basis for such Third Party Claim and for the Indemnified Party’s claim for indemnification that is being asserted under any provision of this Article IX against an Indemnifying Party, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of such Third Party Claim (a “Claim Notice”) with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the Indemnifying Party shall not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim to the extent that the Indemnifying Party’s ability to defend has been prejudiced by such failure of the Indemnified Party. The Indemnifying Party shall notify the indemnifying party, in writing, Indemnified Party as soon as practicable within the period ending thirty (30) Business Days following receipt by the Indemnifying Party of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, the amount either a Claim Notice or an estimate of Indemnity Notice (as defined below) (the “Dispute Period”) whether the Indemnifying Party disputes its liability or the amount of its liability to the Claims Indemnified Party under this Article IX and Losses. In whether the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountantsIndemnifying Party desires, at its sole cost and expense; provided, howeverto defend the Indemnified Party against such Third Party Claim.
(ii) If the Indemnifying Party notifies the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Article IX, if then the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party Indemnifying Party shall have the right to select separate legal defend, with counsel reasonably satisfactory to assume such defense and otherwise participate in such action the Indemnified Party, at the indemnifying party’s expense. The indemnified party sole cost and expense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings shall have the right to employ counsel separate from counsel employed be vigorously and diligently prosecuted by the indemnifying party Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party in any such action and to participate therein, but the fees and expenses case of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which could the Indemnified Party shall not be indemnified in full pursuant to this Article IX). The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this Section 9.02(a)(ii), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided, further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 9.02(a)(ii), and except as provided in the preceding sentence, the Indemnified Party shall bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under this Article IX with respect to such Third Party Claim.
(iii) If the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Third Party Claim pursuant to this Article IX, or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted by the Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the Indemnified Party(with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 9.02(a)(iii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability or the amount of its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in Section 9.02(a)(iv) the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 9.02(a)(iii) or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and the Indemnified Party shall reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 9.02(a)(iii), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation.
(iv) If the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability or the amount of its liability to the Indemnified Party with respect to the Third Party Claim or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability or the amount of its liability to the Indemnified Party with respect to such Third Party Claim, the amount of Damages specified in the Claim Notice shall be conclusively deemed a liability of the Indemnifying Party under this Article IX and the Indemnifying Party shall pay the amount of such Damages to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability or the amount of its liability with respect to such Third Party Claim, the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute; provided, however, that if the dispute is not resolved within thirty (30) Business Days after the Claim Notice, the Indemnifying Party shall be entitled to institute such legal action as it deems appropriate.
(v) In the event any Indemnified Party should have a material precedential impact or effect on claim under this Article IX against the business or financial condition Indemnifying Party that does not involve a Third Party Claim, the Indemnified Party shall deliver a written notification of a claim for indemnity under this Article IX specifying the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute nature of and basis for such claim, both parties together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of such claim (an “Indemnity Notice”) with reasonable promptness to the Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall cooperate not impair such Party’s rights hereunder except to the extent that the Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim or the amount of the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim or the amount of the claim described in such Indemnity Notice, the amount of Damages specified in the defense Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under this Article IX and the Indemnifying Party shall pay the amount of such Damages to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability or prosecution thereof the amount of its liability with respect to such claim, the Indemnifying Party and the Indemnified Party shall furnish proceed in good faith to negotiate a resolution of such recordsdispute; provided, information however, that if the dispute is not resolved within thirty (30) Business Days after the Claim Notice, such dispute shall be resolved in accordance with the provisions of Section 10.08.
(b) The Indemnifying Party agrees to pay the Indemnified Party, promptly as such expenses are incurred and testimonyare due and payable, for any reasonable legal fees or other reasonable expenses incurred by them in connection with investigating or defending any such claim.
(c) The indemnification provisions contained in this Article IX shall be in addition to (i) any cause of action or similar rights of the Indemnified Party against the Indemnifying Party or others, and attend such conferences, discovery proceedings, hearings, trials and appeals, as (ii) any liabilities the Indemnifying Party may be reasonably requested in connection therewithsubject to.
Appears in 1 contract
Sources: Securities Purchase Agreement (Collective Audience, Inc.)
Procedures for Indemnification. An indemnified (a) If any Indemnified Party receives notice of the assertion of any claim, the commencement of any suit, action or proceeding, or the imposition of any penalty or assessment by a third party in respect of which indemnity may be sought hereunder (a “Third Party Claim”), and the Indemnified Party intends to seek indemnity hereunder, then the Indemnified Party shall provide Seller (if prior to the Liquidation Date) or Seller’s Agent (if after the Liquidation Date) with written notice of the Third Party Claim (a “Claim Notice”). The failure by an Indemnified Party to notify Seller (if prior to the Liquidation Date) or Seller’s Agent (if after the Liquidation Date) shall not relieve Seller of any indemnification responsibility under this ARTICLE 7, except to the extent that Seller is actually and materially prejudiced thereby.
(b) The Indemnified Party shall have the right to control the defense or settlement of such Third Party Claim with reasonably-priced counsel of its choosing; provided that Seller (if prior to the Liquidation Date) or Seller’s Agent (if after the Liquidation Date) shall be entitled (at the expense of Seller or Seller’s Agent (as applicable)) to participate in the defense of any Third Party Claim with its own counsel; and provided further, that the Indemnified Party shall not be authorized to settle or compromise any such Third Party Claim without the prior written consent of Seller (if prior to the Liquidation Date) or Seller’s Agent (if after the Liquidation Date), which consent shall not be unreasonably withheld, delayed, or conditioned. Seller (if prior to the Liquidation Date) or Seller’s Agent (if after the Liquidation Date) shall, at Purchasers’ cost, reasonably cooperate in such defense and make available all witnesses, pertinent records, materials and information in its possession and control relating thereto as is reasonably required by the Indemnified Party.
(c) Any indemnifiable claim hereunder that is not a Third Party Claim shall also be asserted by the Indemnified Party by delivering a Claim Notice to Seller (if prior to the Liquidation Date) or Seller’s Agent (if after the Liquidation Date). Any Claim Notice seeking indemnity hereunder shall notify state (i) that an Indemnified Party has incurred, paid, reserved or accrued, or reasonably and in good faith anticipates that it may incur, pay, reserve or accrue, Damages, (ii) the indemnifying partyamount of such Damages (which, in writingthe case of Damages not yet incurred, of any claim for indemnificationpaid, reserved or accrued, may be the maximum amount reasonably anticipated by an Indemnified Party to be incurred, paid, reserved, accrued or demanded by a third party), and (iii) specifying in reasonable detail the nature basis for such claim. Such Claim Notice shall be given as promptly as is reasonably practicable after the Indemnified Party becomes aware of the Claims basis for each such a claim, provided that the failure to provide such notice shall not relieve Seller of any indemnification responsibility under this ARTICLE 7, except to the extent that Seller is actually and Losses and, materially prejudiced thereby.
(d) If Seller (if knownprior to the Liquidation Date) or Seller’s Agent (if after the Liquidation Date): (i) agrees with the Indemnified Party with respect to the claim set forth in a Claim Notice, the amount parties shall prepare a memorandum setting forth such agreement, and such memorandum shall be signed by both parties (any claims covered by such an agreement, “Agreed Claims”); or an estimate of (ii) disputes the existence or the amount of such claim set forth in a Claim Notice, Seller (if prior to the Claims and Losses. In Liquidation Date) or Seller’s Agent (if after the event of a claim by any third party, or if there is any claim against a third party available by virtue of Liquidation Date) shall notify the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants Indemnified Party in any such action include both the indemnifying party and the indemnified party and such parties shall have writing (with reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above specificity) within thirty (30) Days after notice thereof from calendar days following receipt of such Claim Notice (the indemnified party, “Response Notice”) and the indemnified party may settle parties will negotiate in good faith to resolve such claim without for up to thirty (30) calendar days thereafter or such other period of time as the indemnifying party’s consentparties mutually agree in writing (the “Negotiation Period”). The indemnifying party shall not If the parties should then so agree with respect to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such claim, the parties shall prepare a memorandum setting forth such agreement, and such memorandum shall be signed by both parties (any claims covered by such an agreement, “Settled Claims”). If the parties are unable to agree within the Negotiation Period specified herein, then the matter shall cooperate be submitted to the courts referenced in Section 9.5 below; provided that if such claim is made by an Indemnified Party and Seller (if prior to the defense Liquidation Date) or prosecution thereof Seller’s Agent (if after the Liquidation Date) does not submit such matter to the courts referenced in Section 9.5 below within thirty (30) calendar days following the expiration of the Negotiation Period specified above, then such matter shall be deemed undisputed and Seller shall furnish indemnify the Indemnified Party for the Damages.
(e) Any decision of the court with respect to both the existence and amount of such recordsclaim shall be final and binding on the parties hereto. If no Response Notice is received by the Indemnified Party within thirty (30) calendar days after Seller’s or Seller’s Agent’s (as applicable) receipt of the Claim Notice, information the matter shall be deemed undisputed and testimonySeller shall indemnify the Indemnified Party for the Damages (any such claims, “Unobjected Claims”). A “Payable Claim” shall mean a claim for indemnification of Damages under this ARTICLE 7 to the extent that such claim is (A) an Agreed Claim, (B) a Settled Claim, or (C) an Unobjected Claim. An “Unresolved Claim” shall mean any claim for indemnification of Damages under this ARTICLE 7 specified in any Claim Notice, to the extent that such claim is not a Payable Claim. In the event that an Indemnified Party is entitled to recover the same Damages under more than one provision of this Agreement, the Indemnified Party shall only be permitted to recover such Damages under one provision, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewithwithout duplication.
Appears in 1 contract
Procedures for Indemnification. (a) An indemnified party hereunder Indemnification Claim shall notify be made by an Indemnitee by delivery of a written notice to the indemnifying partyAcquiror or the Indemnitor Representative, in writingas appropriate, of any claim for indemnification, requesting indemnification and specifying in reasonable detail the nature basis on which indemnification is sought and the amount of the Claims and asserted Losses and, if knownin the case of a Third Party Claim, containing (by attachment or otherwise) such other information as such Indemnitee shall have concerning such Third Party Claim.
(b) If the Indemnification Claim involves a Third Party Claim, the amount procedures set forth in Section 11.3 shall be observed by the Indemnitee and the Acquiror or the Indemnitor Representative, as appropriate.
(c) If the Indemnification Claim involves a matter other than a Third Party Claim, the Acquiror or the Indemnitor Representative, as appropriate, shall have 30 days after actual receipt by him or it of the written notice described in Section 11.2(a) to object to such Indemnification Claim by delivery of a written notice of such objection to the Indemnitee specifying in reasonable detail the basis for such objection. Failure to timely so object shall constitute a final and binding acceptance of the Indemnification Claim by the Acquiror, or the Indemnitor Representative on behalf of all Shareholder Indemnitors, as appropriate, and the Indemnification Claim shall be paid in accordance with subsection (d) hereof. If an estimate objection is timely interposed by the Acquiror or the Indemnitor Representative, as appropriate, and the dispute is not resolved by the Indemnitee and the Acquiror or the Indemnitor Representative, as appropriate, within 15 days after the date the Indemnitee receives such objection, such dispute shall be resolved by arbitration as provided in Section 11.12.
(d) Upon determination of the amount of an Indemnification Claim, whether by agreement between the Claims Acquiror or the Indemnitor Representative, as appropriate, and Losses. In the event of a claim Indemnitee or by an arbitration award or by any third partyother final adjudication, or if there the Indemnitors shall pay the amount of such Indemnification Claim within thirty days after the date such amount is any claim against a third party available by virtue determined. Subject to the terms of the circumstances of the Claims and LossesEscrow Agreement, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, if the defendants in any such action include both the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense of any such action, the indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. 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 therein, but the fees and expenses of such counsel employed by the indemnified party payment shall be at its expense. The indemnifying party shall not be liable made by delivering to the Indemnitee certificates, duly endorsed for any settlement transfer, representing that number of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution shares of Acquiror Common Stock having a third-party claim as provided above within thirty value (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect based on the business or financial condition of Closing Price), rounded to the indemnified party without nearest share, equal to the indemnified party’s prior written consent. Whether or not the indemnifying party chooses amount due such Indemnitee hereunder, in each case subject to so defend or prosecute such claim, both parties shall cooperate in the defense or prosecution thereof Sections 11.6 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 therewith11.7.
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Procedures for Indemnification. (a) An indemnified party hereunder Indemnification Claim shall notify be made by an Indemnified Party by delivery of a written notice to the indemnifying partyIndemnifying Party requesting indemnification and specifying the basis on which indemnification is sought and the amount of asserted Losses and such other information as such Indemnified Party shall have concerning such claim. If one of the parties to this Agreement makes an Indemnification Claim, in writing, then the Indemnified Party shall provide such written notice to the Indemnifying Party as soon as practical after such Indemnified Party becomes aware of any claim fact, condition, or event which may give rise to Losses for indemnification, which indemnification may be sought under this Section 10.
(b) The Indemnifying Party shall have thirty (30) days to object to such Indemnification Claim by delivery of a written notice of such objection to the Indemnified Party specifying in reasonable detail the nature basis for such objection. Failure to timely so object shall constitute a final and binding acceptance of the Claims Indemnification Claim by the Indemnifying Party and Losses andthe Indemnification Claim shall be paid in accordance with subsection (c) hereof. If an objection is timely interposed by the Indemnifying Party and the dispute is not resolved by the Indemnified Party and the Indemnifying Party within fifteen (15) days from the date the Indemnified Party receives such objection, then either party may refer such dispute to a single arbiter agreed upon by the parties, or if knownno single arbiter can be agreed upon, then an arbiter or arbiters shall be selected in accordance with the amount or an estimate rules of the American Arbitration Association and such dispute shall be settled by binding arbitration in accordance with the then prevailing commercial rules of the American Arbitration Association, and judgment upon the award rendered by the arbiter may be entered in any court having jurisdiction thereof.
(c) Upon determination of the amount of an Indemnification Claim, whether by agreement between Indemnifying Party and Indemnified Party or settled by binding arbitration, the Claims and Losses. In Indemnifying Party shall pay the event amount of a claim by any third party, or if there is any claim against a third party available by virtue Indemnification Claim within (10) days of the circumstances date such amount is determined.
(d) Subject to Seller's Limitation of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, howeverLiability set forth in Section 10.7, if the defendants in any such action include both Indemnifying Party is Seller, then the indemnifying party and the indemnified party and such parties shall have reasonable concluded that there may be a conflict between the positions of such parties in conducting the defense payment of any such action, the indemnified party shall have the Indemnification Claim may be made to Purchaser by right to select separate legal counsel to assume such defense and otherwise participate in such action at the indemnifying party’s expense. The indemnified party shall have the right to employ counsel separate from counsel employed by the indemnifying party in of set-off against any such action and to participate therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses Earn-Out Payments owed by Purchaser to so defend or prosecute such claim, both parties 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 appealsSeller, as may be reasonably requested described above in connection therewithSection 2.2, pursuant to the procedures set forth in Section 10.5(b).
Appears in 1 contract
Sources: Stock Purchase Agreement (Salona Global Medical Device Corp)
Procedures for Indemnification. An indemnified 11.3.1 Each Indemnified Party will promptly give notice hereunder to the indemnifying party hereunder shall notify ("Notice of Claim") after obtaining written notice of any claim as to which recovery may be sought against the indemnifying party, in writing, of any claim for indemnification, specifying in reasonable detail the nature of the Claims and Losses and, if known, such indemnity will arise from the amount or an estimate of the amount of the Claims and Losses. In the event claim of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, will permit the indemnifying party may to assume the defense of any such claim and any litigation or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expenseother proceeding resulting from such claim; provided, however, that Purchaser (or any Purchaser Indemnified Party) will not be required to permit Seller to assume the defense of any claim or litigation which, if not first paid, discharged or otherwise complied with, would result in an interruption or disruption of the defendants in conduct of the business of Purchaser or any material part thereof. Notwithstanding the foregoing, the right to indemnification hereunder will not be affected by any failure of an Indemnified Party to give such notice. The notice required hereunder will specify the basis for the claim for indemnification and the "Indemnified Liabilities" (collectively, Seller's Indemnified Liabilities and Purchaser's Indemnified Liabilities) arising therefrom to the extent ascertainable at the time of the notice. Failure by an indemnifying party to notify an Indemnified Party of its election to defend any such claim or action include both by a third party within 21-days after notice thereof will have been given to the 40 indemnifying party will be deemed a waiver by the indemnifying party and of its right to defend such claim or action if the indemnified Indemnified Party's ability to defend such claim or action would be prejudiced by the indemnifying party's assumption of the defense after such time.
11.3.2 The indemnifying party and such parties shall have reasonable concluded that there may be a conflict between will not, in the positions defense of such parties in conducting claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) or enter into any settlement, except with the written consent of the Indemnified Party (which will not be unreasonably withheld) if such settlement involves the entry of injunctive relief binding upon the Indemnified Party or its assets or requiring the Indemnified Party to make any payment not indemnified hereunder.
11.3.3 If the indemnifying party will not assume the defense of any such actionclaim by a third party, or litigation resulting therefrom, after receipt of notice from the Indemnified Party, the indemnified party shall have the right to select separate legal counsel to assume Indemnified Party may defend against such defense and otherwise participate claim or litigation in such action at manner as it deems appropriate.
11.3.4 If the indemnifying party’s expenseparty will notify the Indemnified Party that it disputes any claim made by the Indemnified Party, then the Parties hereto will endeavor to settle and compromise such claim, and if unable to agree on any settlement or compromise, such claim for indemnification will be settled by appropriate mediation and then arbitration, as delineated in Section 14.18, and any liability established by reason of such settlement, compromise, mediation or arbitration, will be deemed to be finally determined; provided, however, that the indemnifying party must notify the Indemnified Party of the disputed claim within 180 days of the receipt by the indemnifying party of the notice required by Section 11.3.1 hereof. The indemnified party shall have Any claim that is finally determined in the right to employ counsel separate from counsel employed manner set forth above will be paid promptly by the indemnifying party in any such action cash.
11.3.5 The Party seeking indemnification pursuant to this Article 11 will bear the burden of proof as to each and to participate therein, but the fees and expenses every element of such counsel employed by the indemnified party shall be at its expense. The indemnifying party shall not be liable for any settlement of any such Claims and Losses effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a third-party claim as provided above within thirty (30) Days after notice thereof from the indemnified party, the indemnified party may settle such claim without the indemnifying party’s consent. The indemnifying party shall not agree to a settlement of any Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so defend or prosecute such indemnification claim, both parties 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.
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