Procedures Relating to Indemnification. Promptly after the receipt by any party hereto of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Party") shall give written notice of such claim (a "Notice of Claim") to the party or parties obligated to provide indemnification hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, to the extent known. The failure of the Indemnified Party to so notify the Indemnifying Party shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party. The Indemnifying Party shall be entitled to participate in the defense or settlement of such matter and the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlement.
Appears in 1 contract
Procedures Relating to Indemnification. Promptly after the receipt by any a party hereto indemnified under Section 7 or 8 above of written notice of any loss, claim, action, suit damage or proceeding liability in respect of any third party which is subject to indemnification indemnity may be sought by it hereunder, such indemnified party will, if a claim is to be made against an indemnifying party, notify the indemnifying party thereof in writing, but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability (otherwise than under this Section 7 or parties (8 hereof, as the "Indemnified Party"case may be) shall give written notice of such claim (a "Notice of Claim") which it may have to the party or parties obligated to provide indemnification hereunder (collectivelyindemnified party. Thereafter, the "Indemnifying Party"), stating the nature and basis of such claim indemnified party and the amount thereofindemnifying party shall consult, to the extent knownappropriate, with a view to minimizing the cost to the indemnifying party of its obligations hereunder. The failure In case any indemnified party receives written notice of any loss, claim, damage or liability in respect of which indemnity may be sought by it hereunder and it notifies the Indemnified Party to so notify indemnifying party thereof, the Indemnifying Party shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party. The Indemnifying Party shall indemnifying party will be entitled to participate in therein, and to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from the indemnified party, to assume the defense or settlement of such matter and the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate thereof with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer indemnified party; provided, however, that if the parties against which any loss, claim, damage or SPACEHAB. No compromise or settlement liability arises include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that the defenses available to it create a conflict of interest for the counsel selected by the indemnifying party under the code of professional responsibility applicable to such counsel, the indemnified party shall have the right to select one separate counsel to assume such legal defenses and otherwise to participate in the defenses of such claim may be effected loss, claim, damage or liability on behalf of the indemnified party. Upon receipt by either the indemnified party without of notice from the other party's consent (which indemnifying party of its election so to assume the defense of such loss, claim, damage or liability and approval by the indemnified party of counsel, the indemnifying party shall not be unreasonably withheld) liable to the indemnified party under Section 7 or 8 hereof, as the case may be, for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof unless (i) there is no finding or admission the indemnified party shall have employed such counsel in connection with the assumption of any violation of law and no effect on any other claims that may be made against such other party and legal defenses in accordance with the proviso to the next preceding sentence, (ii) the sole relief provided indemnifying party shall not have employed and continued to employ counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party shall have authorized in writing the employment of separate counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party shall, without prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which the indemnified party is monetary damages or is entitled or subject to be a party and the indemnified party is entitled to indemnity hereunder unless such settlement includes an unconditional release of the indemnified party from all liability on any claims that are the subject matter of such action. No indemnifying party shall be liable for any settlement, compromise or consent to the entry of any order adjudicating or otherwise disposing of any loss, claim, damage or liability effected without its written consent. If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof) that would otherwise have been indemnified under the terms of such indemnity, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in full respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party seeking failed to give the settlementnotice required above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one had and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equity considerations. The relative benefits received by the Company on the one had and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total compensation received by the Underwriters in respect of underwriting discounts and commissions as set forth in the table on the cover page of the Prospectus plus financial advisory fees paid to the Representatives by The Southern Company. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Underwriters on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this section were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this section. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this section shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this section, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute are several in proportion to their respective underwriting obligations and not joint.
Appears in 1 contract
Procedures Relating to Indemnification. Promptly after The Lender shall give the receipt by any party hereto of -------------------------------------- Purchaser prompt written notice of any claim, action, suit damages claim asserted against Lender or discovery of fact upon which the Lender intends to base a request for indemnification under Section 7.04(c). If such damages claim or the circumstances giving rise to Lender's belief that a legal action or proceeding will be commenced, the Purchaser may, at its option assume the defense of any third party which is subject claim in such legal action or proceeding by giving written notice to indemnification hereunder, such party or parties the Lender within thirty (the "Indemnified Party"30) shall give written days of receipt of a notice of such claim (a "Notice of Claim") from the Lender and appoint as lead counsel in such defense any legal counsel that is reasonably acceptable to the party or parties obligated to provide indemnification hereunder (collectivelyLender. In such event, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, to the extent known. The failure of the Indemnified Party to so notify the Indemnifying Party shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party. The Indemnifying Party Lender shall be entitled to participate in, but not control, (unless Lender in good faith believes its rights will otherwise be prejudiced) the defense or settlement and to employ counsel of its choice for such matter purpose; provided, however, that such employment shall be at the Lender's own expense (unless Lender's counsel is employed because of Lender's good faith belief that its rights may be prejudiced) unless the Lender and the Purchaser are both named parties agree to cooperate the proceeding and the Lender has reasonably concluded that there may be one or more legal defenses which are different from or in any such defense or settlement and addition to give each other full access those available to all information relevant theretothe Purchaser. The Indemnifying Party Purchaser shall not be obligated to indemnify an Indemnified Party hereunder liable for any settlement entered into settlement, compromise, discharge or other disposition of damages by the Lender that Lender obtains without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; providedPurchaser, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding withheld or admission denied. The parties shall cooperate in the defense of any violation of law claim and no effect on any other claims that shall furnish such records, information and testimony, provide such witnesses and attend such conferences and proceedings as may be made against such other party and (ii) the sole relief provided is monetary damages that are paid reasonably requested in full by the party seeking the settlementconnection therewith.
Appears in 1 contract
Procedures Relating to Indemnification. Promptly after the receipt by any a party hereto indemnified under Section 7 or 8 above of written notice of any loss, claim, action, suit damage or proceeding liability in respect of any third party which is subject to indemnification indemnity may be sought by it hereunder, such indemnified party will, if a claim is to be made against an indemnifying party, notify the indemnifying party thereof in writing, but the 10 omission so to notify the indemnifying party will not relieve the indemnifying party from any liability (otherwise than under Section 7 or parties (8 hereof, as the "Indemnified Party"case may be) shall give written notice of such claim (a "Notice of Claim") which it may have to the party or parties obligated to provide indemnification hereunder (collectivelyindemnified party. Thereafter, the "Indemnifying Party"), stating the nature and basis of such claim indemnified party and the amount thereofindemnifying party shall consult, to the extent knownappropriate, with a view to minimizing the cost to the indemnifying party of its obligations hereunder. The failure In case any indemnified party receives written notice of any loss, claim, damage or liability in respect of which indemnity may be sought by it hereunder and it notifies the Indemnified Party to so notify indemnifying party thereof, the Indemnifying Party shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party. The Indemnifying Party shall indemnifying party will be entitled to participate in therein, and, to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from the indemnified party, to assume the defense or settlement of such matter and the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate thereof with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer indemnified party; provided, -------- however, that if the parties against which any loss, claim, damage or SPACEHAB. No compromise or settlement liability ------- arises include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that the defenses available to it create a conflict of interest for the counsel selected by the indemnifying party under the code of professional responsibility applicable to such counsel, the indemnified party shall have the right to select one separate counsel to assume such legal defenses and otherwise to participate in the defenses of such claim may be effected loss, claim, damage or liability on behalf of the indemnified party. Upon receipt by either the indemnified party without of notice from the other party's consent (which indemnifying party of its election so to assume the defense of such loss, claim, damage or liability and approval by the indemnified party of counsel, the indemnifying party shall not be unreasonably withheld) liable to the indemnified party under Section 7 or 8 hereof, as the case may be, for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed such counsel in connection with the assumption of legal defenses in accordance with the proviso to the next preceding sentence, (ii) the indemnifying party shall not have employed and continued to employ counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action, (iii) the indemnified party shall have reasonably concluded that there is no finding may be legal defenses which are available to it which are different from and conflict with those available to the indemnifying party, or admission (iv) the indemnifying party shall have authorized in writing the employment of separate counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party shall, without prior written consent of the indemnified party, effect any settlement of any violation pending or threatened action in respect of law which the indemnified party is or is entitled or subject to be a party and no effect the indemnified party is entitled to indemnity hereunder unless such settlement (i) includes an unconditional release of the indemnified party from all liability on any other claims that may be made against are the subject matter of such other party action and (ii) does not require any admission or acknowledgement of culpability or wrongdoing on behalf of an indemnified party. No indemnifying party shall be liable for any settlement, compromise or consent to the sole relief entry of any order adjudicating or otherwise disposing of any loss, claim, damage or liability effected without its written consent. If the indemnification provided for under Section 7 or 8 above is monetary unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof) that are would otherwise have been indemnified under the terms of such indemnity, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in full respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Securities. If, however, the 11 allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party seeking failed to give the settlementnotice required above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equity considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total compensation received by the Underwriters in respect of underwriting discounts and commissions as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Underwriters on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this section were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this section. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this section shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this section, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
Appears in 1 contract
Samples: Underwriting Agreement (Mirant Corp)
Procedures Relating to Indemnification. Promptly after the receipt by any (Except Under ---------------------------------------------------- Section 11.01). In order for a party hereto of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Partyindemnified party") shall give to be entitled ------------- ----------------- to any indemnification provided for under this Agreement (other than under Section 11.01) in respect of, arising out of or involving a claim or demand made by any person, firm, governmental authority or corporation against the indemnified party (a "Third-Party Claim"), such indemnified party must notify ----------------- the indemnifying party in writing, and in reasonable detail, of the Third-Party Claim within 10 Business Days after receipt by such indemnified party of written notice of the Third-Party Claim; provided, however, that failure to give such claim (a "Notice of Claim") to -------- ------- notification shall not affect the party or parties obligated to provide indemnification provided hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, except to the extent known. The the indemnifying party shall have been actually prejudiced as a result of such failure of (except that the Indemnified Party to so notify the Indemnifying Party indemnifying party shall not impair be liable for any expenses incurred during the Indemnified Partyperiod in which the indemnified party failed to give such notice). Thereafter, the indemnified party shall deliver to the indemnifying party, within 5 Business Days after the indemnified party's ability receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to seek indemnification from the Indemnifying PartyThird-Party Claim. The Indemnifying If a Third-Party shall Claim is made against an indemnified party, the indemnifying party will be entitled to participate in the defense or settlement of such matter and thereof and, if it so chooses, to assume the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or thereof with counsel selected by the Buyer or SPACEHAB), indemnifying party and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer indemnified party. Should the indemnifying party so elect to assume the defense of a Third-Party Claim, the indemnifying party will not be liable to the indemnified party for legal fees and expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third-Party Claim as provided above). If the indemnifying party chooses to defend or SPACEHABprosecute any Third-Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof. No compromise or settlement of such claim may be effected by either party without Such cooperation shall include the other retention and (upon the indemnifying party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (iirequest) the sole relief provided is monetary damages that provision to the indemnifying party of records and information which are paid in full by the party seeking the settlement.reasonably relevant to such Third-Party Claim, and making employees available on a mutually convenient basis to provide additional
Appears in 1 contract
Procedures Relating to Indemnification. Promptly after the receipt by any a party hereto indemnified under Section 7 or 8 above of written notice of any loss, claim, action, suit damage or proceeding liability in respect of any third party which is subject to indemnification indemnity may be sought by it hereunder, such indemnified party will, if a claim is to be made against an indemnifying party, notify the indemnifying party thereof in writing, but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability (otherwise than under this Section 7 or parties (8 hereof, as the "Indemnified Party"case may be) shall give written notice of such claim (a "Notice of Claim") which it may have to the party or parties obligated to provide indemnification hereunder (collectivelyindemnified party. Thereafter, the "Indemnifying Party"), stating the nature and basis of such claim indemnified party and the amount thereofindemnifying party shall consult, to the extent knownappropriate, with a view to minimizing the cost to the indemnifying party of its obligations hereunder. The failure In case any indemnified party receives written notice of any loss, claim, damage or liability in respect of which indemnity may be sought by it hereunder and it notifies the Indemnified Party to so notify indemnifying party thereof, the Indemnifying Party shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party. The Indemnifying Party shall indemnifying party will be entitled to participate in therein, and to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from the indemnified party, to assume the defense or settlement of such matter and the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate thereof with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer indemnified party; provided, however, that if the parties against which any loss, claim, damage or SPACEHAB. No compromise or settlement liability arises include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that the defenses available to it create a conflict of interest for the counsel selected by the indemnifying party under the code of professional responsibility applicable to such counsel, the indemnified party shall have the right to select one separate counsel to assume such legal defenses and otherwise to participate in the defenses of such claim may be effected loss, claim, damage or liability on behalf of the indemnified party. Upon receipt by either the indemnified party without of notice from the other party's consent (which indemnifying party of its election so to assume the defense of such loss, claim, damage or liability and approval by the indemnified party of counsel, the indemnifying party shall not be unreasonably withheld) liable to the indemnified party under Section 7 or 8 hereof, as the case may be, for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof unless (i) there is no finding or admission the indemnified party shall have employed such counsel in connection with the assumption of any violation of law and no effect on any other claims that may be made against such other party and legal defenses in accordance with the proviso to the next preceding sentence, (ii) the sole relief provided indemnifying party shall not have employed and continued to employ counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party shall have authorized in writing the employment of separate counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party shall, without prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which the indemnified party is monetary damages or is entitled or subject to be a party and the indemnified party is entitled to indemnity hereunder unless such settlement includes an unconditional release of the indemnified party from all liability on any claims that are the subject matter of such action. No indemnifying party shall be liable for any settlement, compromise or consent to the entry of any order adjudicating or otherwise disposing of any loss, claim, damage or liability effected without its written consent. If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof) that would otherwise have been indemnified under the terms of such indemnity, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in full respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Offerors on the one hand and the Underwriters on the other from the offering of the Preferred Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party seeking failed to give the settlementnotice required above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Offerors on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equity considerations. The relative benefits received by the Offerors on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Offerors bear to the total underwriting commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Offerors on the one hand or the Underwriters on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Offerors and the Underwriters agree that it would not be just and equitable if contributions pursuant to this section were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this section. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this section shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this section, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Preferred Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute are several in proportion to their respective underwriting obligations and not joint.
Appears in 1 contract
Samples: Sei Trust I
Procedures Relating to Indemnification. Promptly after the receipt In order for a party to be entitled to any indemnification under this Agreement in respect of a claim or demand made by any third party hereto (a “Claim”) against that party or the Company (the “Indemnified Party”), such Indemnified Party must notify the indemnifying party or parties of the Claim reasonably promptly after receipt of notice of any claimthe Claim, actionprovided, suit or proceeding of any third party which is subject however, that failure to give such notification shall not affect the indemnification hereunder, such provided under this Agreement except to the extent the indemnifying party or parties (the "Indemnified Party") shall give written notice have been actually prejudiced as a result of such claim failure (a "Notice of Claim") to except that the indemnifying party or parties obligated shall not be liable for any expenses incurred during the period in which the Indemnified Party failed to provide indemnification hereunder (collectivelygive such notice). After such notice, the "Indemnifying Party")indemnifying party or parties shall be entitled, stating if it or they so elects, to take control of the nature defense and basis investigation of such claim Claim and the amount thereof, to the extent known. The failure employ and engage attorneys of its or their own choice who are reasonably satisfactory to the Indemnified Party to handle and defend the same, at the indemnifying party’s or parties’ risk and expense; provided, that (i) if two or more Sellers are the indemnifying parties for the same Claim, then such Sellers may jointly make such election or one or more of such Sellers may authorize another Seller that is an indemnifying party to make such election and (ii) if such Claim involves a permanent injunction or any customer or supplier of the Company and would be reasonably expected to have a Material Adverse Effect if successful, then no Seller shall be permitted to so notify take control of such defense or investigation but may, at its own cost, participate in the Indemnifying investigation, trial and defense of such Claim and any appeal arising therefrom. The Indemnified Party shall not impair cooperate in all reasonable respects with the indemnifying party or parties and such attorneys in the investigation, trial and defense of such Claim and any appeal arising therefrom, provided, however, that the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of such Claim and any appeal arising therefrom. If the indemnifying party or parties shall assume the defense with counsel reasonably satisfactory to the Indemnified Party's ability to seek indemnification from , the Indemnifying indemnifying party or parties shall not be liable for any legal expenses subsequently incurred by the Indemnified Party. The Indemnifying indemnifying party or parties shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the indemnifying party or parties has failed to assume the defense thereof (other than during the period prior to the time the Indemnified Party shall be entitled to participate in have given notice of the Claim as provided above). If the indemnifying party or parties shall have assumed the defense of a Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Claim which the indemnifying party or parties may recommend and which by its terms obligates the indemnifying party or parties to pay the full amount it is obligated to pay under this Agreement in connection with such Claim, which releases the Indemnified Party completely in connection with such Claim, and which would not otherwise have a material adverse effect on the Indemnified Party. In no event may settlement of such any indemnified matter and the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not hereunder be obligated to indemnify an Indemnified Party hereunder for any settlement entered into effected without the Indemnifying Party's prior written consentconsent of the indemnifying party or parties, which consent shall not be unreasonably withheld, conditioned and provided the settlement releases the indemnifying party or delayed. If any Notice of parties completely in connection with such Claim relates to and would not have a claim by a person material adverse effect on the indemnifying party or persons parties (other than by federal, state or local income tax authorities or by the effect of its obligation to make indemnification payments). Buyer or SPACEHABshall cause the Company to perform its obligations as an Indemnified Party under this Section 9.3(c), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ameron International Corp)
Procedures Relating to Indemnification. Promptly In order for an indemnified party to be entitled to any indemnification provided for under this Agreement (other than relating to Taxes) in respect of, arising out of or involving a claim or demand made by any person against the indemnified party (a “Third Party Claim”), such indemnified party must notify the indemnifying party of the Third Party Claim reasonably promptly and in any event within 30 days after the receipt by any such indemnified party hereto of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Party") shall give written notice of the Third Party Claim; provided, however, that failure to give such claim (a "Notice of Claim") to notification within such period shall not affect the party or parties obligated to provide indemnification provided hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, except to the extent knownthe indemnifying party shall have been actually materially prejudiced as a result of such failure. The failure of If a Third Party Claim is made against an indemnified party, the Indemnified Party to so notify the Indemnifying Party shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party. The Indemnifying Party indemnifying party shall be entitled to participate in the defense or settlement thereof and, if it so chooses at its sole cost and upon written notice to the indemnified party acknowledging its obligation to indemnify the indemnified party therefore in accordance with the terms of such matter and this Agreement (including this Section 6), to assume the parties agree defense thereof with counsel selected by the indemnifying party. Should the indemnifying party so elect to cooperate in any such assume the defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying of a Third Party Claim, the indemnifying party shall not be obligated liable to indemnify an Indemnified Party hereunder the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any settlement entered into without period during which the Indemnifying Party's prior written consentindemnifying party has failed to assume the defense thereof. If the indemnifying party so elects to assume the defense of any Third Party Claim, the indemnified parties shall cooperate with the indemnifying party in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party’s reasonable request) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the indemnifying party shall have assumed the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim which the indemnifying party may recommend and which by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which consent releases the indemnified party completely in connection with such Third Party Claim and which would not otherwise materially adversely affect the indemnified party. The indemnified party shall have the right to settle any Third Party Claim the defense of which shall not have been assumed by the indemnifying party. Notwithstanding the foregoing, the indemnifying party shall not be unreasonably withheldentitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, conditioned injunction or delayed. If any Notice of Claim relates to a claim by a person other equitable relief or persons (relief for other than by federal, state or local income tax authorities or by money damages against the Buyer or SPACEHAB)indemnified party, and the indemnified party shall have the sole and exclusive right to settle any such Third Party Claim. The indemnification required by Sections 6(a) and 6(b) shall be made by periodic payments of the amount thereof during the course of such claim is acknowledged by Seller to be fully covered by the foregoing indemnityinvestigation or defense, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer and when bills are received or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there Loss is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlementincurred.
Appears in 1 contract
Samples: Asset Purchase Agreement and Plan of Reorganization (iGambit, Inc.)
Procedures Relating to Indemnification. Promptly after the receipt by any a party hereto indemnified under Section 7 or 8 above of written notice of any loss, claim, action, suit damage or proceeding of any third party liability in respect from which is subject to indemnification indemnity may be sought by it hereunder, such indemnified party will, if a claim is to be made against an indemnifying party, notify the indemnifying party thereof in writing, but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability (otherwise than under Section 7 or parties (8 hereof, as the "Indemnified Party"case may be) shall give written notice of such claim (a "Notice of Claim") which it may have to the party or parties obligated to provide indemnification hereunder (collectivelyindemnified party. Thereafter, the "Indemnifying Party"), stating the nature and basis of such claim indemnified party and the amount thereofindemnifying party shall consult, to the extent knownappropriate, with a view to minimizing the cost to the indemnifying party of its obligations hereunder. The failure In case any indemnified party receives written notice of any loss, claim, damage or liability in respect of which indemnity may be sought by it hereunder and it notifies the Indemnified Party to so notify indemnifying party thereof, the Indemnifying Party shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party. The Indemnifying Party shall indemnifying party will be entitled to participate in therein, and to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from the indemnified party, to assume the defense or settlement of such matter and the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate thereof with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer indemnified party; provided, however, that if the parties against which any loss, claim, damage or SPACEHAB. No compromise or settlement liability arises include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that the defenses available to it create a conflict of interest for the counsel selected by the indemnifying party under the code of professional responsibility applicable to such counsel, the indemnified party shall have the right to select one separate counsel to assume such legal defenses and otherwise to participate in the defenses of such claim may be effected loss, claim, damage or liability on behalf of the indemnified party. Upon receipt by either the indemnified party without of notice from the other party's consent (which indemnifying party of its election so to assume the defense of such loss, claim, damage or liability and approval by the indemnified party of counsel, the indemnifying party shall not be unreasonably withheld) liable to the indemnified party under Section 7 or 8 hereof, as the case may be, for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof unless (i) there is no finding or admission the indemnified party shall have employed such counsel in connection with the assumption of any violation of law and no effect on any other claims that may be made against such other party and legal defenses in accordance with the proviso to the next preceding sentence, (ii) the sole relief provided indemnifying party shall not have employed and continued to employ counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party shall have authorized in writing the employment of separate counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party shall, without prior written consent of the indemnified party, effect any settlement of or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action in respect of which the indemnified party is monetary damages or is entitled or subject to be a party and the indemnified party is entitled to indemnity hereunder unless such settlement, compromise or judgment includes an unconditional release of the indemnified party from all liability on any claims that are the subject matter of such action and does not include any statement as to, or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party. No indemnifying party shall be liable for any settlement, compromise or consent to the entry of any order adjudicating or otherwise disposing of any loss, claim, damage or liability effected without its written consent. If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof) that would otherwise have been indemnified under the terms of such indemnity, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in full respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party seeking failed to give the settlementnotice required above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equity considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total compensation received by the Underwriters in respect of underwriting discounts and commissions as set forth in the table on the cover page of the Final Supplemented Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Underwriters on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this section were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this section. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this section shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this section, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute are several in proportion to their respective underwriting obligations and not joint.
Appears in 1 contract
Samples: Underwriting Agreement (Southern Co)
Procedures Relating to Indemnification. Promptly after the receipt by any In order for a party hereto of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified PartyINDEMNIFIED PARTY") shall give to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any person, firm, governmental authority or corporation against the indemnified party (a "THIRD-PARTY CLAIM"), such indemnified party must notify the indemnifying party in writing, and in reasonable detail, of the Third-Party Claim within 10 business days after receipt by such indemnified party of written notice of the Third-Party Claim; provided, however, that failure to give such claim (a "Notice of Claim") to notification shall not affect the party or parties obligated to provide indemnification provided hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, except to the extent known. The the indemnifying party shall have been actually prejudiced as a result of such failure of (except that the Indemnified Party to so notify the Indemnifying Party indemnifying party shall not impair be liable for any expenses incurred during the Indemnified Partyperiod in which the indemnified party failed to give such notice). Thereafter, the indemnified party shall deliver to the indemnifying party, within 5 Business Days after the indemnified party's ability receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to seek indemnification from the Indemnifying PartyThird-Party Claim. The Indemnifying If a Third-Party shall Claim is made against an indemnified party, the indemnifying party will be entitled to participate in the defense or settlement of such matter and thereof and, if it so chooses, to assume the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or thereof with counsel selected by the Buyer or SPACEHAB), indemnifying party and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHABindemnified party. No compromise or settlement Should the indemnifying party so elect to assume the defense of such claim may be effected by either a Third-Party Claim, the indemnifying party without the other party's consent (which shall will not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law liable to the indemnified party for legal fees and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full expenses subsequently incurred by the indemnified party seeking in connection with the settlement.defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expenses, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (Times Mirror Co /New/)
Procedures Relating to Indemnification. Promptly after An indemnified party under this SECTION 10 shall give prompt written notice to the receipt by any indemnifying party hereto of notice (when and to the extent that the indemnified party has actual knowledge thereof) of any claimcondition, event or occurrence or the commencement of any action, suit or proceeding of any third party for which is subject to indemnification hereundermay be sought, such party or parties (and the "Indemnified Party") shall give written notice of such claim (a "Notice of Claim") indemnifying party, through counsel reasonably satisfactory to the indemnified party or parties obligated to provide indemnification hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereofCompany, to shall assume the extent known. The failure of the Indemnified Party to so notify the Indemnifying Party shall not impair the Indemnified Party's ability to seek defense thereof or other indemnification from the Indemnifying Party. The Indemnifying Party obligation with respect thereto; PROVIDED, HOWEVER, that any indemnified party shall be entitled to participate in the defense or settlement of such matter and the parties agree to cooperate in any such defense action, suit or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice proceeding with counsel of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim its own choice but at its expenseown expense and PROVIDED, in lieu of the Buyer or SPACEHAB assuming such defense; providedFURTHER, that Buyer or SPACEHAB any indemnified party shall be entitled to participate in any such action, suit or monitor proceeding with counsel of its own choice at the expense of the indemnifying party, if, in the good faith judgment of the indemnified party's counsel, representation by the indemnifying party's counsel may present a conflict of interests. The failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under this SECTION 10, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. In any event, if the indemnifying party fails to assume the defense within a reasonable time, the indemnified party may assume such defense at or other indemnification obligation and the reasonable fees and expenses of its expense and Seller attorneys will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If be covered by the Seller or any other persons as indemnity provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHABfor in this SECTION 10. No compromise action, suit or settlement of such claim proceeding for which indemnification may be effected by either sought shall be compromised or settled in any manner which might adversely affect the interests of the indemnifying party without the other party's prior written consent of such indemnifying party (which shall not be unreasonably withheld) unless ). Notwithstanding anything in this SECTION 10 to the contrary, the indemnifying party shall not, without the written consent of the indemnified party, (i) there is no finding settle or admission compromise any action, suit or proceeding or consent to the entry of any violation judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the indemnified party of law a written release from all liability in respect of such action, suit or proceeding or (ii) settle or compromise any action, suit or proceeding in any manner that may materially and no effect on any adversely affect the indemnified party other claims than as a result of money damages or other money payments. The indemnifying party shall pay all expenses, including attorneys' fees, that may be made against such other incurred by any indemnified party and (ii) in enforcing the sole relief indemnity provided is monetary damages that are paid for in full by the party seeking the settlementthis SECTION 10.
Appears in 1 contract
Procedures Relating to Indemnification. Promptly after the receipt by any (Other than under Section ------- 11.1). In order for a party hereto of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Partyindemnified party") shall give to be entitled to any ---- ----------------- indemnification provided for under this Agreement (other than in relation to Taxes, which matters are governed by Section 11.1) in respect of, arising out of ------------ or involving a claim or demand made by any person against the indemnified party (a "Third Party Claim"), such indemnified party must notify the indemnifying ----------------- party in writing, and in reasonable detail, of the Third Party Claim within 10 business days after receipt by such indemnified party of written notice of the Third Party Claim; provided, however, that failure to give such claim (a "Notice of Claim") to notification -------- ------- shall not affect the party or parties obligated to provide indemnification provided hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, except to the extent known. The the indemnifying party shall have been actually prejudiced as a result of such failure of (except that the Indemnified Party to so notify the Indemnifying Party indemnifying party shall not impair be liable for any expenses incurred during the Indemnified Partyperiod in which the indemnified party failed to give such notice). Thereafter, the indemnified party shall deliver to the indemnifying party, within five business days after the indemnified party's ability receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to seek indemnification from the Indemnifying PartyThird Party Claim. The Indemnifying If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense or settlement thereof and, if it so chooses and acknowledges its obligation to indemnify the indemnified party therefor, to assume the defense thereof with counsel selected by the indemnifying party; provided that such counsel is not reasonably objected to by -------- the indemnified party. Should the indemnifying party so elect to assume the defense of such matter and a Third Party Claim, the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party indemnifying party shall not be obligated liable to indemnify an Indemnified Party hereunder the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any settlement entered into period during which the indemnifying party has failed to assume the defense thereof (other than during the period prior to the time the indemnified party shall have given notice of the Third Party Claim as provided above). If the indemnifying party so elects to assume the defense of any Third Party Claim, all of the indemnified parties shall cooperate with the indemnifying party in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party shall have assumed 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 Partyindemnifying party's prior written consent, consent (which consent shall not be unreasonably withheld, conditioned or delayed). If the indemnifying party shall have assumed the defense of a Third Party Claim, the indemnified party shall agree to any Notice settlement, compromise or discharge of a Third Party Claim relates which the indemnifying party may recommend and which by its terms obligates the indemnifying party to a claim by a person or persons (other than by federal, state or local income tax authorities or by pay the Buyer or SPACEHAB), and the full amount of the liability in connection with such claim is acknowledged by Seller to be fully covered by Third Party Claim, which releases the foregoing indemnity, as limited hereinindemnifying party completely in connection with such Third Party Claim and which would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB indemnifying party shall not be entitled to participate in or monitor such assume the defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation Third Party Claim (and shall be liable for the fees and expenses of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full counsel incurred by the indemnified party seeking in defending such Third Party Claim) if the settlement.Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party which the indemnified party reasonably determines, after conferring with its outside counsel, cannot be
Appears in 1 contract
Procedures Relating to Indemnification. Promptly In order for an Indemnified Person to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any Person against the Indemnified Person (a "Third-Party Claim"), such Indemnified Person must notify the Indemnifying Person in writing, and in reasonable detail, of the Third-Party Claim within ten (10) Business Days after the receipt by any party hereto such Indemnified Person of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Party") shall give written notice of the Third-Party Claim; provided, however, that failure to give such claim (a "Notice of Claim") to notification shall not affect the party or parties obligated to provide indemnification provided hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, except to the extent known. The failure of the Indemnified Party to so notify the Indemnifying Person shall have been actually prejudiced as a result of such failure. For purposes of this Agreement, a Third-Party Claim shall not impair include the commencement of any audit or other proceeding pertaining to Taxes. If a Third-Party Claim is made against an Indemnified Party's ability to seek indemnification from Person, the Indemnifying Party. The Indemnifying Party shall Person will be entitled to participate in the defense or settlement thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Person and reasonably satisfactory to the Indemnified Person. Should the Indemnifying Person so elect to assume the defense of a Third-Party Claim, the Indemnifying Person will not be liable to the Indemnified Person for legal fees and expenses subsequently incurred by the Indemnified Person in connection with the defense thereof. If the Indemnifying Person assumes such matter and defense, the parties agree Indemnified Person shall have the right to cooperate participate in any such the defense or settlement thereof and to give each other full access to all information relevant theretoemploy counsel, at its own expense, separate from the counsel employed by the Indemnifying Person, it being understood that the Indemnifying Person shall control such defense. The Indemnifying Person shall be liable for the fees and expenses of counsel employed by the Indemnified Person for any period during which the Indemnifying Person has not assumed the defense thereof (other than during any period in which the Indemnified Person shall have failed to give notice of the Third-Party Claim as provided above). If the Indemnifying Person chooses to defend or prosecute any Third-Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Person's request) the provision to the Indemnifying Person of Records and information which are reasonably relevant to such Third-Party Claim, and making employees available on a mutually convenient basis in the manner specified in Section 6.4 to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Person shall have assumed the defense of a Third-Party Claim, the Indemnified Person shall not be obligated to indemnify an Indemnified admit any liability with respect to, or settle, compromise or discharge, such Third-Party hereunder for any settlement entered into Claim without the Indemnifying PartyPerson's prior written consent, consent (which consent shall not be unreasonably withheld, conditioned withheld or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlement.
Appears in 1 contract
Samples: Stock and Interest Purchase Agreement (Magnetek Inc)
Procedures Relating to Indemnification. Promptly after the receipt by any In order for a party hereto of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Partyindemnified party") shall give to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any person, firm, governmental authority or corporation who is not a party to this Agreement against the indemnified party (a "Third Party Claim"), such indemnified party must notify the indemnifying party in writing, and in reasonable detail, of the Third Party Claim within 20 business days after receipt by such indemnified party of written notice of the Third Party Claim; provided, however, that failure to give such claim (a "Notice of Claim") to notification shall not affect the party or parties obligated to provide indemnification provided hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, except to the extent known. The the indemnifying party shall have been actually prejudiced as a result of such failure of (except that the Indemnified Party to so notify the Indemnifying Party indemnifying party shall not impair be liable for any expenses incurred during the Indemnified Partyperiod in which the indemnified party failed to give such notice). Thereafter, the indemnified party shall deliver to the indemnifying party, within five business days after the indemnified party's ability receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to seek indemnification from the Indemnifying PartyThird Party Claim. The Indemnifying If a Third Party shall Claim is made against an indemnified party, the indemnifying party will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the STOCK PURCHASE AGREEMENT 23 27 indemnifying party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party will not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or settlement prosecute any Third Party Claim, all of such matter and the parties agree to hereto shall cooperate in any such the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the indemnifying party chooses to defend or prosecute any Third Party Claim, the indemnifying party may not settle any matter (in whole or in part) unless (i) such settlement includes a complete and unconditional release of the indemnified party with respect to give each other full access any matter for which indemnification is available under this Agreement, or (ii) the indemnified party consents in writing to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any such settlement entered into without the Indemnifying Party's prior written consent, (which consent shall not be unreasonably withheld, conditioned ). Whether or delayed. If any Notice not the indemnifying party shall have assumed the defense of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited hereinThird Party Claim, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB indemnified party shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel not admit any liability with respect thereto. If the Seller to, or any other persons as provided above elect to assume such defensesettle, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of discharge, such Third Party claim may be effected by either party without the other indemnifying party's prior written consent (which consent shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlement).
Appears in 1 contract
Procedures Relating to Indemnification. Promptly In order for an Indemnified Person to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Person (a "Third-Party Claim"), such Indemnified Person shall notify the Indemnifying Person in writing, and in reasonable detail, of the Third-Party Claim with reasonable promptness after the receipt by any party hereto such Indemnified Person of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Party") shall give written notice of the Third-Party Claim with and in any event within 20 Business Days after such claim (a "Notice of Claim") receipt; provided, however, that failure to give such notification shall not affect the party or parties obligated to provide indemnification provided hereunder (collectively, the "Indemnifying Party"), stating the nature except if and basis of such claim and the amount thereof, to the extent known. The failure of the Indemnified Party to so notify the Indemnifying Person shall have been actually prejudiced as a result of such failure. If a Third-Party shall not impair the Claim is made against an Indemnified Party's ability to seek indemnification from Person, the Indemnifying Party. The Indemnifying Party shall Person will be entitled to participate in the defense or settlement thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Person and reasonably satisfactory to the Indemnified Person. Should the Indemnifying Person so elect to assume the defense of a Third-Party Claim, the Indemnifying Person will not be liable to the Indemnified Person for legal fees and expenses subsequently incurred by the Indemnified Person in connection with the defense thereof. If the Indemnifying Person assumes such matter and defense, the parties agree Indemnified Person shall have the right to cooperate participate in any such the defense or settlement thereof and to give each other full access to all information relevant theretoemploy counsel, at its own expense, separate from the counsel employed by the Indemnifying Person, it being understood that the Indemnifying Person shall control such defense. The Indemnifying Person shall be liable for the fees and expenses of counsel employed by the Indemnified Person for any period during which the Indemnifying Person has not assumed the defense thereof (other than during any period in which the Indemnified Person shall have failed to give notice of the Third-Party Claim as provided above). If the Indemnifying Person chooses to defend or prosecute any Third-Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include, upon reasonable prior notice, the provision to the Indemnifying Person of copies of Records and information which are reasonably relevant to such Third-Party Claim, and making employees reasonably available on a mutually convenient basis in the manner specified in Section 7.6 to provide additional information and explanation of any material provided hereunder; provided, however that such cooperation shall not be obligated to indemnify unreasonably disrupt the normal business operations of the Business following the Closing Date. Notwithstanding the foregoing, in the event a Third-Party Claim is made against an Indemnified Person as to which such Indemnified Person is entitled to seek indemnification hereunder, and if there is a reasonable likelihood that a Third-Party Claim may materially and adversely affect an Indemnified Person and/or the Business other than as a result of money damages or money payments, then the Indemnified Person may, at its sole option, elect to retain the defense of such Third-Party Claim and will be entitled to be reimbursed by the Indemnifying Person for its out of pocket expenses reasonably incurred in such defense, such expenditures to be reimbursed promptly after submission of invoices therefor. No party which shall have assumed the defense of any Third-Party Claim hereunder for (i.e., the Indemnifying Person or Indemnified Person) shall admit any settlement entered into liability with respect to, or settle, compromise or discharge, any such Third-Party Claim without the Indemnifying Partyother party's prior written consent, consent (which consent shall not be unreasonably withheld, conditioned withheld or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlement.
Appears in 1 contract
Procedures Relating to Indemnification. Promptly after (a) If an Indemnified Party has or claims to have incurred or suffered or may reasonably incur or suffer Losses for which it is or may reasonably be entitled to indemnification, compensation or reimbursement with respect to an Indemnifiable Matter, then Purchaser shall deliver to the receipt Seller, one or more certificates signed by any party hereto officer of notice the applicable Indemnified Party on or before the last day of any claimthe applicable Survival Period (a “Claim” and a “Claim Notice”, actionas applicable): (i) stating (to the extent known or reasonably anticipated) that an Indemnified Party has incurred, suit paid, reserved or proceeding of any third party which is subject accrued, or in good faith believes that it may incur, pay, reserve or accrue, Losses; (ii) stating (to indemnification hereunder, such party the extent known or parties (reasonably anticipated) the "Indemnified Party") shall give written notice amount of such claim Losses (a "Notice which, in the case of Claim") to Losses not yet incurred or paid, shall be the party or parties obligated to provide indemnification hereunder (collectively, the "Indemnifying Party"), stating the nature and basis good faith estimate of such claim and the amount thereof, to followed by an additional Claim Notice when such Losses are incurred and paid) (the extent known. The failure “Claimed Amount”); and (iii) specifying in reasonable detail (based upon the information then possessed by Xxxxxxxxx) the individual items of the Indemnified Party to so notify the Indemnifying Party shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party. The Indemnifying Party shall be entitled to participate such Losses included in the defense or settlement of such matter and the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB)amount so stated, and the amount of such claim is acknowledged by Seller material facts and circumstances giving rise to be fully covered by the foregoing indemnityclaim, as limited herein, and the Seller may elect to defend against such claim at its expense, in lieu nature of the Buyer or SPACEHAB assuming claim to which such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect theretoLosses are related. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheldb) unless Such Claim Notice (i) there is no finding or admission need only specify such information to the knowledge of any violation such officer of law and no effect on any other claims that may be made against such other party and Purchaser as of the date thereof, (ii) shall not limit any of the sole relief rights or remedies of any Indemnified Party with respect to the underlying facts and circumstances set forth in such Claim Notice and (iii) may be updated and amended from time to time by Purchaser to reflect new information learned by Purchaser by delivering any updated or amended Claim Notice, so long as the delivery of the original Claim Notice is made in compliance with this Agreement and within the applicable Survival Period and such update or amendment relates to the underlying facts and circumstances specifically set forth in such original Claims Notice; provided is monetary damages that are paid all claims for Losses properly set forth in full by the party seeking the settlement.a Claim Notice or any update or amendment thereto shall remain
Appears in 1 contract
Procedures Relating to Indemnification. Promptly after the receipt by any party hereto of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Party") shall give written notice of such claim (a "Notice of Claim") to the party or parties obligated to provide indemnification hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, to the extent known. The failure of the Indemnified Party to so notify the Indemnifying Party shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party. The Indemnifying Party shall be entitled to participate in the defense or settlement of such matter and the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHABParent), and the amount of such claim is acknowledged by Seller the Company Stockholder to be fully covered by the foregoing indemnity, as limited herein, the Seller Company Stockholder may elect to defend against such claim at its their expense, in lieu of the Buyer or SPACEHAB Parent assuming such defense; provided, that Buyer or SPACEHAB the Parent shall be entitled to participate in or monitor such defense at its expense and Seller the Company Stockholder will fully cooperate with Buyer or SPACEHAB the Parent and its their counsel with respect thereto. If the Seller or any other persons as provided above elect Company Stockholder so elects to assume such defense, they he shall retain counsel reasonably satisfactory to the Buyer or SPACEHABParent. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlement.
Appears in 1 contract
Procedures Relating to Indemnification. Promptly after (a) Each Person to be indemnified pursuant to Section 8.2 or 8.3 agrees to give prompt notice to the receipt by any indemnifying party hereto of notice the assertion of any claimclaim or the commencement of any suit, action, suit action or proceeding of any brought against it or sought to be collected by a third party which is subject to indemnification hereunder, from such party or parties indemnified Person (the "Indemnified Party") shall give written notice of such claim (each a "Notice of Third Party Claim") to the party or parties obligated to provide indemnification hereunder (collectively, the "Indemnifying Party"), stating in respect of which indemnity may be sought by such indemnified Person under Section 8.2 or 8.3; provided that the nature and basis of omission so to promptly notify the indemnifying party with respect to a Third Party Claim brought against or sought to be collected from such claim and indemnified Person will not relieve the amount thereof, indemnifying party from any liability which it may have to such indemnified Person under Section 8.2 or 8.3 except to the extent knownthat such failure has materially prejudiced such indemnifying party with respect to the defense of such Third Party Claim. The failure indemnifying Person shall have the right to control the defense of any such Third Party Claim; provided, however, that the Indemnified indemnified party shall have the right to control the defense of a Third Party Claim if such indemnified party shall have provided written notice to so notify the Indemnifying indemnifying Person that such Third Party Claim is an insured event under any policy of insurance then maintained by the indemnified party in which event the indemnifying Person shall not impair have the Indemnified Party's ability to seek indemnification from the Indemnifying Party. The Indemnifying Party shall be entitled right to participate in (but not control) the defense or settlement of such matter Third Party Claim and to retain its own counsel in connection therewith, but the parties agree to cooperate in fees and expenses of any such counsel for the indemnifying Person shall be borne by the indemnifying Person. Except as otherwise provided herein, the indemnified party shall have the right to participate in (but not control) the defense or settlement of any Third Party Claim and to give each other full access to all information relevant theretoretain its own counsel in connection therewith, but the fees and expenses of any such counsel for the indemnified party shall be borne by the indemnified party. The Indemnifying indemnifying party shall be liable for all Losses arising out of any set- tlement of any Third Party Claim. Neither party shall not be obligated to indemnify an Indemnified (i) settle any Third Party hereunder for any settlement entered into Claim without the Indemnifying Party's prior written consentconsent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB no such consent shall be entitled required if the Third Party Claim involves a settlement for money damages only, which the indemnifying party agrees to participate in pay, or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If (ii) without the Seller or prior written consent of the other party effect any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party without the other party's consent (any pending or threatened proceeding in respect of which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party is, or with reasonable foreseeability could have been, a party and indemnity could have been sought hereunder by such other party for a Third Party Claim brought against or sought to be collected from such other party, unless such settlement includes an unconditional release of such other party from all liability arising out of such proceeding (ii) provided that, whether or not such a release is required to be obtained, the sole relief provided indemnifying party shall remain liable to such indemnified Person in accordance with Section 8.2 or 8.3 in the event that a Third Party Claim is monetary damages that subsequently brought against or sought to be collected from such indemnified Person). The indemnification required by Section 8.2 or 8.3, as the case may be, shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills with reasonable documentation are paid in full by the party seeking the settlementreceived or Losses are actually incurred.
Appears in 1 contract
Samples: Asset Purchase Agreement (Entex Information Services Inc)
Procedures Relating to Indemnification. Promptly after the receipt by any party hereto of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Party") shall give written notice of such claim (a "Notice of Claim") to the party or parties obligated to provide indemnification hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, to the extent known. The failure of In order for the Indemnified Party to so be entitled to any indemnity provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any Person (other than Indemnitor) against the Indemnified Party (a "Third Party Claim"), such Indemnified Party must notify Indemnitor in writing, and in reasonable detail, of the Indemnifying Third Party Claim within ten (10) business days after receipt by such Indemnified Party of written notice of the Third Party Claim (the "10 Day Period"); provided, however, that failure to give such notification shall not affect the indemnity provided hereunder except to the extent Indemnitor shall have been actually prejudiced as a result of such failure (except that Indemnitor shall not be liable for any expenses incurred during the period subsequent to the 10 Day Period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall not impair deliver to Indemnitor, within five (5) business days after the Indemnified Party's ability receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to seek indemnification from the Indemnifying Third Party Claim. If a Third Party Claim is made against an Indemnified Party. The Indemnifying Party , Indemnitor shall be entitled to participate in the defense or settlement thereof and, if it so chooses and acknowledges its obligation to indemnify the Indemnified Party therefor, to assume the defense thereof with counsel selected by Indemnitor; provided that such counsel is not reasonably objected to by the Indemnified Party. Should Indemnitor so elect to assume the defense of a Third Party Claim, Indemnitor shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If Indemnitor assumes such matter defense, the Indemnified Party shall have the right to separate counsel (not reasonably objected to by Indemnitor), at its own expense, separate from the counsel employed by Indemnitor, it being understood that Indemnitor shall control such defense. Indemnitor shall be liable for the fees and expenses of counsel employed by the parties agree Indemnified Party for any period during which Indemnitor has failed to assume the defense of the Third Party Claim (other than during the period prior to the time the Indemnified Party shall have given notice of the Third Party Claim as provided above). If Indemnitor so elects to assume the defense of any Third Party Claim, each Indemnified Party shall cooperate with Indemnitor in any such the defense or settlement prosecution thereof. Such cooperation shall include the retention and (upon Indemnitor's request) the provision to give each other full access Indemnitor of records and information which are reasonably relevant to all such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information relevant theretoand explanation of any material provided hereunder. The Indemnifying Whether or not Indemnitor shall have assumed the defense of a Third Party Claim, Indemnified Party shall not be obligated to indemnify an Indemnified admit any liability with respect to, or settle, compromise or discharge, such Third Party hereunder for any settlement entered into Claim without the Indemnifying PartyIndemnitor's prior written consent, consent (which consent shall not be unreasonably withheld, conditioned or delayed). If Indemnitor shall have assumed the defense of a Third Party Claim, Indemnified Party shall agree to any Notice settlement, compromise or discharge of such Third Party Claim relates which Indemnitor may recommend and which by its terms obligates Indemnitor to a claim pay the full amount of the liability in connection with such Third Party Claim, and which releases such Indemnified Party completely in connection with such Third Party Claim and which does not otherwise adversely affect such Indemnified Party. Notwithstanding the foregoing, Indemnitor shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by a person Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or persons (other equitable relief or relief for other than by federalmoney damages against an Indemnified Party which such Indemnified Party reasonably determines, state after conferring with its outside counsel, cannot be separated from any related claim for money damages. If such equitable relief or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu other relief portion of the Buyer or SPACEHAB assuming such defense; providedThird Party Claim can be so separated from that for money damages, that Buyer or SPACEHAB Indemnitor shall be entitled to participate in or monitor such assume the defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If of the Seller or any other persons as provided above elect portion relating to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlementmoney damages.
Appears in 1 contract
Procedures Relating to Indemnification. Promptly In order for an Indemnified Person to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any Person against the Indemnified Person (a "Third-Party Claim"), such Indemnified Person must notify the Indemnifying Person in writing, and in reasonable detail, of the Third-Party Claim within 10 Business Days after the receipt by any party hereto such Indemnified Person of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Party") shall give written notice of the Third-Party Claim; provided, however, that failure to give such claim (a "Notice of Claim") to notification shall not affect the party or parties obligated to provide indemnification provided hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, except to the extent known. The failure of the Indemnified Party to so notify the Indemnifying Person shall have been actually prejudiced as a result of such failure. For purposes of this Agreement, a Third-Party Claim shall not impair include the commencement of any audit or other proceeding pertaining to Taxes. If a Third-Party Claim is made against an Indemnified Party's ability to seek indemnification from Person, the Indemnifying Party. The Indemnifying Party shall Person will be entitled to participate in the defense or settlement thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Person and reasonably satisfactory to the Indemnified Person. Should the Indemnifying Person so elect to assume the defense of a Third-Party Claim, the Indemnifying Person will not be liable to the Indemnified Person for legal fees and expenses subsequently incurred by the Indemnified Person in connection with the defense thereof. If the Indemnifying Person assumes such matter and defense, the parties agree Indemnified Person shall have the right to cooperate participate in any such the defense or settlement thereof and to give each other full access to all information relevant theretoemploy counsel, at its own expense, separate from the counsel employed by the Indemnifying Person, it being understood that the Indemnifying Person shall control such defense. The Indemnifying Person shall be liable for the fees and expenses of counsel employed by the Indemnified Person for any period during which the Indemnifying Person has not assumed the defense thereof (other than during any period in which the Indemnified Person shall have failed to give notice of the Third-Party Claim as provided above). If the Indemnifying Person chooses to defend or prosecute any Third-Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Person's request) the provision to the Indemnifying Person of Records and information which are reasonably relevant to such Third-Party Claim, and making employees available on a mutually convenient basis in the manner specified in Section 6.4 to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Person shall have assumed the defense of a Third-Party Claim, the Indemnified Person shall not be obligated to indemnify an Indemnified admit any liability with respect to, or settle, compromise or discharge, such Third-Party hereunder for any settlement entered into Claim without the Indemnifying PartyPerson's prior written consent, consent (which consent shall not be unreasonably withheld, conditioned withheld or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlement.
Appears in 1 contract
Procedures Relating to Indemnification. Promptly after Any claims for indemnification made hereunder shall be accompanied by a schedule or schedules setting forth the receipt Indemnitee's calculation of such claim. If a claim shall be made by any party hereto of notice of any claimtaxing authority, actionwhich, suit or proceeding of any third party which is subject if successful, might result in an indemnity payment to indemnification hereunderBuyer pursuant to Section 3(a), such party or parties (the "Indemnified Party") Buyer shall give written notice notify Sellers in writing of such claim (a "Notice of Tax Claim") within ten (10) days of receipt of any notice from the taxing authority, or such earlier time that would allow Sellers to the party or parties obligated timely respond to provide indemnification hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim or demand, and shall give Sellers such other information with respect thereto as Sellers may reasonably request. Sellers may, at their own expense, participate in and assume the amount thereofdefense of any such claim, to suit, action, litigation or proceeding (including any Tax audit). If Sellers assume such defense, Sellers shall control all proceedings taken in connection with such Tax Claim (including selection of counsel) and, without limiting the extent knownforegoing and notwithstanding anything else contained herein, may in their sole discretion pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any taxing authority with respect thereto, and may, in their sole discretion, either pay the Tax claimed and sue for a refund where applicable law permits such refund suits or coxxxst the Tax Claim in any permissible manner. The failure of Notwithstanding the Indemnified Party to so notify the Indemnifying Party foregoing, Sellers shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party. The Indemnifying Party shall be entitled to participate in the defense or settlement of such matter and the parties agree to cooperate in settle any such defense claim, suit, action, litigation or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into proceeding without the Indemnifying PartyBuyer's prior written consent, consent (which consent shall not be unreasonably withheld). Sellers and Buyer shall jointly control all proceedings taken in connection with any Tax Claim relating solely to Taxes of the Companies or the Subsidiaries for a Straddle Period. Buyer, conditioned the Companies and the Subsidiaries shall cooperate reasonably with Sellers in contesting any Tax Claim, which cooperation shall include, without limitation, the retention and (upon Sellers' request) the provision to Sellers of records and information which are reasonably relevant to such Tax Claim, and making employees available on a mutually convenient basis to provide additional information or delayedexplanation of any material provided hereunder or to testify at proceedings relating to such Tax Claim. If In no case shall Buyer, the Companies or the Subsidiaries settle or otherwise compromise any Notice of Tax Claim relates relating to a claim by Seller Year or a person Straddle Period without Sellers' prior written consent (which consent shall not be unreasonably withheld). Neither party shall settle a Tax Claim relating solely to Taxes of a Company or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party a Subsidiary for a Straddle Period without the other party's prior written consent (which consent shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlement).
Appears in 1 contract
Samples: Sharing and Indemnification Agreement (Us Industries Inc /De)
Procedures Relating to Indemnification. Promptly after the receipt by any party hereto of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification by any party hereunder, such party or parties (the "Indemnified Party") shall give written notice of such claim (a "Notice of Claim") to the party or parties obligated to provide indemnification hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, to the extent known. The failure of the Indemnified Party to so notify the Indemnifying Party shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party. The Indemnifying Party shall be entitled to participate in the defense or settlement of such matter and the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Except as otherwise provided in this Agreement, the Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state state, local or local income foreign tax authorities or by the Buyer or SPACEHABSmarTalk), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB SmarTalk assuming such defense; providedPROVIDED, that Buyer or SPACEHAB SmarTalk shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB SmarTalk and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHABSmarTalk. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlement).
Appears in 1 contract
Samples: Asset Purchase Agreement (Smartalk Teleservices Inc)
Procedures Relating to Indemnification. Promptly In order for the Seller or the Purchaser to be entitled to any indemnification provided for under this Agreement, arising out of or involving a Seller's Claim or a Purchaser's Claim, the indemnified party must notify the indemnifying party in writing, and in reasonable detail, of the Seller's Claim or the Purchaser's Claim, as the case may be, within thirty (30) days after the receipt by any party hereto the Purchaser of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Party") shall give written notice of the Seller's Claim or the Purchaser's Claim, as the case may be; provided, however, that failure to give such claim (a "Notice of Claim") to notification shall not affect the party or parties obligated to provide indemnification provided hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, except to the extent known. The the indemnifying party shall have been actually prejudiced as a result of such failure of (except that the Indemnified Party to so notify the Indemnifying Party indemnifying party shall not impair be liable for any expenses incurred during the Indemnified Partyperiod following the end of such 30-day period referred to above in which the indemnified party failed to give such notice and the date on which such notice is given). Thereafter, the indemnified party shall deliver to the indemnifying party, within twenty (20) business days after the Purchaser's ability receipt thereof, copies of all notices and documents (including court papers) received by the Purchaser relating to seek indemnification from the Indemnifying Party. Seller's Claim or the Purchaser's Claim, as the case may be The Indemnifying Party shall indemnifying party will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense of the indemnified party (unless the indemnified party is also a party to such Seller's Claim or settlement of such matter the Purchaser's Claim, as the case may be, and the indemnified party determines in good faith that joint representation would be inappropriate due to a potential conflict of interest) with counsel selected by the indemnifying party and reasonably satisfactory to the indemnified party. Should the indemnifying party be entitled under the preceding sentence to assume the defense of a Seller's Claim or the Purchaser's Claim, as the case may be, and so elects to assume such defense, the indemnifying party will not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnified party, it being understood that the indemnifying party shall control such defense (except in the circumstances set forth in the parenthetical to the first sentence of this paragraph). The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period following the 30-day period referred to in the first sentence of this Section 12.03 in which the indemnified shall have failed to give notice of the Seller's Claim or the Purchaser's Claim, as the case may be, as provided above). If the indemnifying party chooses to defend or prosecute any Seller's Claim or the Purchaser's Claim, as the case may be, all of the parties agree to hereto shall cooperate in any such the defense or settlement prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request) the provision to give each other full access the indemnifying party of records and information which are reasonably relevant to all such Seller's Claim or the Purchaser's Claim, as the case may be, and making employees available on a mutually convenient basis to provide additional information relevant theretoand explanation of any material provided hereunder. The Indemnifying Party Whether or not the indemnifying party shall have assumed the defense of a Seller's Claim or the Purchaser's Claim, as the case may be, the indemnified party shall not be obligated to indemnify an Indemnified Party hereunder for admit any settlement entered into liability with respect to, or settle, compromise or discharge, such Seller's Claim or the Purchaser's Claim, as the case may be, without the Indemnifying Partyindemnifying party's prior written consent, consent (which consent shall not be unreasonably withheld, conditioned withheld or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Oriental Financial Group Inc)
Procedures Relating to Indemnification. Promptly after the receipt by any party hereto of notice of any claim, action, suit or proceeding of any third party for which is subject it intends to seek indemnification hereunder, such party or parties (the "Indemnified Party") shall give written notice of such claim (a "Notice of Claim") to the party or parties obligated to provide indemnification hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, to the extent known. The failure of the Indemnified Party to so notify the Indemnifying Party shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party unless such failure has resulted in the loss of substantive rights with respect to the Indemnifying Party's ability to defend such claim, and then only to the extent of such loss. The Indemnifying Party shall be entitled to participate in the defense or settlement of such matter and the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHABParent), and the amount of such claim is acknowledged by Seller the Company Stockholders to be fully covered by the foregoing indemnity, as limited herein, the Seller Company Stockholders may elect to defend against such claim at its their expense, in lieu of the Buyer or SPACEHAB Parent assuming such defense; provided, that Buyer or SPACEHAB Parent shall be entitled to participate in or monitor such defense at its expense and Seller the Company Stockholders will fully cooperate with Buyer or SPACEHAB Parent and its counsel with respect thereto. If the Seller or any other persons as provided above Company Stockholders so elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHABParent. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlement.
Appears in 1 contract
Procedures Relating to Indemnification. Promptly after the receipt by any a party hereto indemnified under Section 7 or 8 above of written notice of any loss, claim, action, suit damage or proceeding liability in respect of any third party which is subject to indemnification indemnity may be sought by it hereunder, such indemnified party will, if a claim is to be made against an indemnifying party, notify the indemnifying party thereof in writing, but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability (otherwise than under Section 7 or parties (8 hereof, as the "Indemnified Party"case may be) shall give written notice of such claim (a "Notice of Claim") which it may have to the party or parties obligated to provide indemnification hereunder (collectivelyindemnified party. Thereafter, the "Indemnifying Party"), stating the nature and basis of such claim indemnified party and the amount thereofindemnifying party shall consult, to the extent knownappropriate, with a view to minimizing the cost to the indemnifying party of its obligations hereunder. The failure In case any indemnified party receives written notice of any loss, claim, damage or liability in respect of which indemnity may be sought by it hereunder and it notifies the Indemnified Party to so notify indemnifying party thereof, the Indemnifying Party shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party. The Indemnifying Party shall indemnifying party will be entitled to participate in therein, and to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from the indemnified party, to assume the defense or settlement of such matter and the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate thereof with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer indemnified party; provided, however, that if the parties against which any loss, claim, damage or SPACEHAB. No compromise or settlement liability arises include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that the defenses available to it create a conflict of interest for the counsel selected by the indemnifying party under the code of professional responsibility applicable to such counsel, the indemnified party shall have the right to select one separate counsel to assume such legal defenses and otherwise to participate in the defenses of such claim may be effected loss, claim, damage or liability on behalf of the indemnified party. Upon receipt by either the indemnified party without of notice from the other party's consent (which indemnifying party of its 8 election so to assume the defense of such loss, claim, damage or liability and approval by the indemnified party of counsel, the indemnifying party shall not be unreasonably withheld) liable to the indemnified party under Section 7 or 8 hereof, as the case may be, for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed such counsel in connection with the assumption of legal defenses in accordance with the proviso to the next preceding sentence, (ii) the indemnifying party shall not have employed and continued to employ counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action, (iii) the indemnified party shall have reasonably concluded that there is no finding may be legal defenses which are available to it which are different from and conflict with those available to the indemnifying party, or admission (iv) the indemnifying party shall have authorized in writing the employment of separate counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party shall, without prior written consent of the indemnified party, effect any settlement of any violation pending or threatened action in respect of law which the indemnified party is or is entitled or subject to be a party and no effect the indemnified party is entitled to indemnity hereunder unless such settlement (i) includes an unconditional release of the indemnified party from all liability on any other claims that may be made against are the subject matter of such other party action and (ii) does not require any admission or acknowledgement of culpability or wrongdoing on behalf of an indemnified party. No indemnifying party shall be liable for any settlement, compromise or consent to the sole relief entry of any order adjudicating or otherwise disposing of any loss, claim, damage or liability effected without its written consent. If the indemnification provided for under Section 7 or 8 above is monetary unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof) that are would otherwise have been indemnified under the terms of such indemnity, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in full respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriter on the other from the offering of the Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party seeking failed to give the settlementnotice required above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one had and the Underwriter on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equity considerations. The relative benefits received by the Company on the one had and the Underwriter on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total compensation received by the Underwriter in respect of underwriting discounts and commissions as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Underwriter on the other and the parties' relative intent, knowledge, 9 access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriter agrees that it would not be just and equitable if contributions pursuant to this section were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this section. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this section shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this section, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
Appears in 1 contract
Samples: Underwriting Agreement (Mirant Corp)
Procedures Relating to Indemnification. Promptly after the receipt by any a party hereto indemnified under Section 7 or 8 above of written notice of any loss, claim, action, suit damage or proceeding liability in respect of any third party which is subject to indemnification indemnity may be sought by it hereunder, such indemnified party will, if a claim is to be made against an indemnifying party, notify the indemnifying party thereof in writing, but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability (otherwise than under Section 7 or parties (8 hereof, as the "Indemnified Party"case may be) shall give written notice of such claim (a "Notice of Claim") that it may have to the party or parties obligated to provide indemnification hereunder (collectivelyindemnified party. Thereafter, the "Indemnifying Party"), stating the nature and basis of such claim indemnified party and the amount thereofindemnifying party shall consult, to the extent knownappropriate, with a view to minimizing the cost to the indemnifying party of its obligations hereunder. The failure In case any indemnified party receives written notice of any loss, claim, damage or liability in respect of which indemnity may be sought by it hereunder and it notifies the Indemnified Party to so notify indemnifying party thereof, the Indemnifying Party shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party. The Indemnifying Party shall indemnifying party will be entitled to participate in therein, and to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from the indemnified party, to assume the defense or settlement of such matter and the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate thereof with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer indemnified party; provided, however, that if the parties against which any loss, claim, damage or SPACEHAB. No compromise or settlement liability arises include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that defenses available to it create a conflict of interest for the counsel selected by the indemnifying party under the code of professional responsibility applicable to such counsel, the indemnified party shall have the right to select one separate counsel to assume such legal defenses and otherwise to participate in the defenses of such claim may be effected loss, claim, damage or liability on behalf of the indemnified party. Upon receipt by either the indemnified party without of notice from the other party's consent (which indemnifying party of its selection so to assume the defense of such loss, claim, damage or liability and approval by the indemnified party of counsel, the indemnifying party shall not be unreasonably withheld) liable to the indemnified party under Section 7 or 8 hereof, as the case may be, for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof unless (i) there is no finding or admission the indemnified party shall have employed such counsel in connection with the assumption of any violation of law and no effect on any other claims that may be made against such other party and legal defenses in accordance with the proviso to the next preceding sentence, (ii) the sole relief provided indemnifying party shall not have employed and continued to employ counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party shall have authorized in writing the employment of separate counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party shall, without prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which the indemnified party is monetary damages or is entitled or subject to be a party and the indemnified party is entitled to indemnity hereunder unless such settlement includes an unconditional release of the indemnified party from all liability on any claims that are the subject matter of such action. No indemnifying party shall be liable for any settlement, compromise or consent to the entry of any order adjudicating or otherwise disposing of any loss, claim, damage or liability effected without its written consent. If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof) that would otherwise have been indemnified under the terms of such indemnity, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in full respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Initial Purchasers on the other from the offering of the Notes. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party seeking failed to give the settlementnotice required above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equity considerations. The relative benefits received by the Company on the one hand and the Initial Purchaser on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total compensation received by the Initial Purchasers in respect of underwriting spread as set forth in Schedule I hereto. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Initial Purchasers on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Initial Purchasers agree that it would not be just and equitable if contributions pursuant to this section were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this section. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this section shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this section, no Initial Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Notes underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Initial Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Initial Purchasers’ obligations to contribute are several in proportion to their respective purchase obligations and not joint.
Appears in 1 contract
Samples: Purchase Agreement (Mirant Americas Generating LLC)
Procedures Relating to Indemnification. Promptly In order for a party (the ---------------------------------------- "indemnified party") to be entitled to any indemnification provided for under ------------------ this Agreement in respect of, arising out of or involving a claim or demand made by any person against the indemnified party (a "Third Party Claim"), such ----------------- indemnified party must notify the indemnifying party in writing, and in reasonable detail, of the Third Party Claim within 10 business days after the receipt by any such indemnified party hereto of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Party") shall give written notice of the Third Party Claim; provided, however, that failure to give such claim (a "Notice of Claim") to notification shall not affect the party or parties obligated to provide -------- ------- indemnification provided hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, except to the extent known. The the indemnifying party shall have been actually prejudiced as a result of such failure of (except that the Indemnified Party to so notify the Indemnifying Party indemnifying party shall not impair be liable for any expenses incurred during the Indemnified Partyperiod in which the indem-nified party failed to give such notice). Thereafter, the indemnified party shall deliver to the indemnifying party, within five business days after the indemnified party's ability receipt thereof, copies of all notices and documents (includ-ing court papers) received by the indemnified party relating to seek indemnification from the Indemnifying PartyThird Party Claim. The Indemnifying If a Third Party Claim is made against an indemni-fied party, the indemnifying party shall be entitled to participate in the defense or settlement thereof and, if it so chooses and acknowledges its obligation to indemnify the indemnified party therefor, to assume the defense thereof with counsel selected by the indemnifying party; provided that such counsel is not reasonably objected to by -------- the indemnified party. Should the indemnifying party so elect to assume the defense of such matter and a Third Party Claim, the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party indemnifying party shall not be obligated liable to indemnify an Indemnified Party hereunder the indemnified party for legal expenses subse-quently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnify-ing party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any settlement entered into period during which the indemnifying party has failed to assume the defense thereof (other than during the period prior to the time the indemnified party shall have given notice of the Third Party Claim as provided above). If the indemnifying party so elects to assume the defense of any Third Party Claim, all of the indemnified parties shall cooperate with the indemnifying party in the defense or prose-cution thereof. Such cooperation shall include the reten-tion and (upon the indemnifying party's request) the provi-sion to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnify-ing party shall have assumed 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 Partyindemnifying party's prior written consent, consent (which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or indemnifying party shall have assumed the defense of a Third Party Claim, the indem-nified party shall agree to any other persons as provided above elect to assume such defensesettlement, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement discharge of a Third Party Claim which the indemnifying party may recommend and which by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such claim may be effected by either Third Party Claim, which releases the indemnifying party without completely in connection with such Third Party Claim and which would not otherwise adversely affect the other indemnified party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Pacific Usa Holdings Corp)
Procedures Relating to Indemnification. Promptly after the receipt by any party hereto of notice of any claimIn order for a SVI Indemnified Party or a Buyer Indemnified Party (either, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the an "Indemnified Party") shall give to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any person, firm, governmental authority or corporation against the Indemnified Party (a "Third Party Claim"), such Indemnified Party must notify the indemnifying party in writing, and in reasonable detail, of the Third Party Claim within 30 business days after receipt by such Indemnified Party of written notice of the Third Party Claim; PROVIDED, HOWEVER, that failure to give such claim (a "Notice of Claim") to notification shall not affect the party or parties obligated to provide indemnification provided hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, except to the extent known. The the indemnifying party shall have been actually prejudiced as a result of such failure of (except that the indemnifying party shall not be liable for any expenses incurred during the period in which the Indemnified Party failed to so notify give such notice). Thereafter, the Indemnifying Indemnified Party shall not impair deliver to the indemnifying party, within ten business days after the Indemnified Party's ability receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to seek the Third Party Claim; PROVIDED, HOWEVER, that failure to give such notification shall not affect the indemnification from provided hereunder except to the Indemnifying extent the indemnifying party shall have been actually prejudiced as a result of such failure. If a Third Party Claim is made against an Indemnified Party. The Indemnifying Party shall , the indemnifying party will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the indemnifying party and reasonably satisfactory to the Indemnified Party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party will not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the indemnifying party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the Indemnified Party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or settlement of such matter and prosecute any Third Party Claim, all the parties agree to hereto shall cooperate in any such the defense or settlement prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request) the provision to give each other full access the indemnifying party of records and information which are reasonably relevant to all such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information relevant theretoand explanation of any material provided hereunder. The Indemnifying Whether or not the indemnifying party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall not be obligated to indemnify an Indemnified admit any liability with respect to, or settle, compromise or discharge, such Third Party hereunder for any settlement entered into Claim without the Indemnifying Partyindemnifying party's prior written consent, consent (which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlement.
Appears in 1 contract
Samples: Purchase Agreement (Canandaigua B V)
Procedures Relating to Indemnification. Promptly after the receipt by any (a) party hereto of notice of any claim, action, suit or proceeding of any third party which is subject seeking indemnification pursuant to indemnification hereunder, such party or parties this Article 8 (the an "Indemnified Party") shall give prompt written notice of such claim (a "Notice of Claim") to the party or parties obligated to provide from whom such indemnification hereunder is sought (collectively, the "Indemnifying Party") of the assertion of any claim, the incurrence of any Damages, or the commencement of any action, suit or proceeding of which it has knowledge and in respect of which indemnity may be sought hereunder (a "Third Party Claim"), stating and will give the nature and basis Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request, but failure to give such required notice shall relieve the Indemnifying Party of such claim and the amount thereof, any liability hereunder only to the extent knownthat the Indemnifying Party has suffered actual prejudice thereby. The failure of Thereafter, the Indemnified Party shall deliver to so notify the Indemnifying Party, within ten (10) 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 Third Party Claim. The Indemnifying Party shall have the right, exercisable by written notice to the Indemnified Party after receipt of notice from the Indemnified Party of the commencement of or assertion of any claim or action, suit or proceeding by a third party in respect of which indemnity may be sought hereunder, to assume the defense of such Third Party Claim which involves (and continues to involve) solely monetary damages using counsel reasonably satisfactory to the Indemnified Party; provided, that (A) the Indemnifying Party expressly agrees in such notice that, as between the Indemnifying Party and the Indemnified Party, solely the Indemnifying Party shall be obligated to satisfy and discharge the Third Party Claim, (B) such Third Party Claim does not impair include a request or demand for injunctive or other equitable relief and (C) the Indemnifying Party makes reasonably adequate provision to assure the Indemnified Party's Party of the ability to seek indemnification from of the Indemnifying PartyParty to satisfy the full amount of any adverse monetary judgment that is reasonably likely to result. The Indemnifying Party shall be entitled deemed to participate have satisfied the condition set forth in clause (C) of the defense or settlement of such matter and preceding sentence if it is a regulated utility. Should the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defensethe defense of a Third Party Claim pursuant to this Section 8.6, they shall retain counsel reasonably satisfactory the Indemnifying Party will not be liable to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full Indemnified Party for legal expenses subsequently incurred by the party seeking Indemnified Party in connection with the settlementdefense thereof.
Appears in 1 contract
Procedures Relating to Indemnification. Promptly In order for a party (the ---------------------------------------- "indemnified party") to be entitled to any indemnification provided for under ------------------ this Agreement in respect of, arising out of or involving a claim or demand made by any person against the indemnified party (a "Third Party Claim"), such ----------------- indemnified party must notify the indemnifying party in writing, and in reasonable detail, of the Third Party Claim within 10 business days after the receipt by any such indemnified party hereto of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Party") shall give written notice of the Third Party Claim; provided, however, that failure to give such claim (a "Notice of Claim") to notification shall not affect the party or parties obligated to provide -------- ------- indemnification provided hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, except to the extent known. The the indemnifying party shall have been actually prejudiced as a result of such failure of (except that the Indemnified Party to so notify the Indemnifying Party indemnifying party shall not impair be liable for any expenses incurred during the Indemnified Partyperiod in which the indem-nified party failed to give such notice). Thereafter, the indemnified party shall deliver to the indemnifying party, within five business days after the indemnified party's ability receipt thereof, copies of all notices and documents (includ-ing court papers) received by the indemnified party relating to seek indemnification from the Indemnifying PartyThird Party Claim. The Indemnifying If a Third Party Claim is made against an indemni-fied party, the indemnifying party shall be entitled to participate in the defense or settlement thereof and, if it so chooses and acknowledges its obligation to indemnify the indemnified party therefor, to assume the defense thereof with counsel selected by the indemnifying party; provided that such counsel is not reasonably objected to by -------- the indemnified party. Should the indemnifying party so elect to assume the defense of such matter and a Third Party Claim, the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party indemnifying party shall not be obligated liable to indemnify an Indemnified Party hereunder the indemnified party for legal expenses subse-quently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnify-ing party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any settlement entered into period during which the indemnifying party has failed to assume the defense thereof (other than during the period prior to the time the indemnified party shall have given notice of the Third Party Claim as provided above). If the indemnifying party so elects to assume the defense of any Third Party Claim, all of the indemnified parties shall cooperate with the indemnifying party in the defense or prose-cution thereof. Such cooperation shall include the reten-tion and (upon the indemnifying party's request) the provi-sion to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnify-ing party shall 35 36 have assumed 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 Partyindemnifying party's prior written consent, consent (which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or indemnifying party shall have assumed the defense of a Third Party Claim, the indem-nified party shall agree to any other persons as provided above elect to assume such defensesettlement, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement discharge of a Third Party Claim which the indemnifying party may recommend and which by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such claim may be effected by either Third Party Claim, which releases the indemnifying party without completely in connection with such Third Party Claim and which would not otherwise adversely affect the other indemnified party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Technical Olympic Usa Inc)
Procedures Relating to Indemnification. Promptly after the receipt by any party hereto of notice of any claim, action, suit or proceeding of any third party for which is subject it intends to seek indemnification hereunder, such party or parties (the "Indemnified Party") shall give written notice of such claim (a "Notice of Claim") to the party or parties obligated to provide indemnification hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, to the extent known. The failure of the Indemnified Party to so notify the Indemnifying Party shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party unless such failure to so notify has resulted in the loss of substantive rights with respect to the Indemnifying Party's ability to defend such claim, and then only to the extent of such loss. The Indemnifying Party shall be entitled to participate in the defense or settlement of such matter and the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHABParent), and the amount of such claim is acknowledged by Seller the Company Stockholder to be fully covered by the foregoing indemnity, as limited herein, the Seller Company Stockholder may elect to defend against such claim at its his expense, in lieu of the Buyer or SPACEHAB Parent assuming such defense; provided, provided that Buyer or SPACEHAB the Parent shall be entitled to participate in or monitor such defense at its expense and Seller the Company Stockholder will fully cooperate with Buyer or SPACEHAB the Parent and its their counsel with respect thereto. If the Seller or any other persons as provided above elect Company Stockholder so elects to assume such defense, they he shall retain counsel reasonably satisfactory to the Buyer or SPACEHABParent. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlement.
Appears in 1 contract
Procedures Relating to Indemnification. Promptly In order for an Indemnified Person to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any Person against the Indemnified Person (a "Third-Party Claim"), such Indemnified Person must notify the Indemnifying Person in writing, and in reasonable detail, of the Third-Party Claim within 10 Business Days after the receipt by any party hereto such Indemnified Person of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Party") shall give written notice of the Third-Party Claim; PROVIDED, HOWEVER, that failure to give such claim (notification shall not affect the indemnification provided hereunder in the absence of actual and material prejudice as a "Notice result of Claim") such failure. Thereafter, the Indemnified Person shall promptly deliver to the party or parties obligated Indemnifying Person copies of all notices and documents (including court papers) received by the Indemnified Person relating to provide indemnification hereunder (collectivelythe Third-Party Claim. If a Third-Party Claim is made against the Indemnified Person, the "Indemnifying Party"), stating Person shall have the nature and basis right to assume the defense (at the Indemnifying Person's expense) of any such Third-Party Claim through counsel of its own choosing by so notifying the Indemnified Person within 10 Business Days after the first receipt by the Indemnifying Person of such claim and the amount thereofnotice described above; PROVIDED, HOWEVER, that any such counsel shall be reasonably satisfactory to the extent knownIndemnified Person. The failure If, under applicable standards of professional conduct, a conflict with respect to any significant issue between the Indemnified Person and Indemnifying Person exists in respect of such Third-Party to so notify Claim, the Indemnifying Party Person shall not impair pay the Indemnified Party's ability reasonable fees and expenses of such additional counsel as may be required to seek indemnification from the Indemnifying Partybe retained in order to eliminate such 49 conflict. The Indemnifying Person will be liable for the fees and expenses of counsel employed by the Indemnified Person for any period during which the Indemnifying Person has not assumed the defense of any Third-Party Claim (other than during any period in which the Indemnified Person will have failed to give notice of a Third-Party Claim as provided above). If the Indemnifying Person elects to assume the defense of a Third-Party Claim, the Indemnified Person shall be entitled have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Person, it being understood that the Indemnifying Person shall control such defense. If the Indemnifying Person chooses to defend or settlement of such matter and prosecute any Third-Party Claim, all the parties agree to hereto shall cooperate in any such the defense or settlement and prosecution thereof, which cooperation shall include, to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the extent reasonably requested by the Indemnifying Party's prior written consentPerson, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB)retention, and the amount provision to the Indemnifying Person, of records and information reasonably relevant to such claim is acknowledged by Seller Third-Party Claim, and making employees of the Business available on a mutually convenient basis to be fully covered by provide additional information and explanation of any material provided hereunder. Notwithstanding the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expenseforegoing, in lieu the event a Third-Party Claim is made against the Indemnified Person as to which such Indemnified Person is entitled to seek indemnification hereunder and (i) such Indemnified Person reasonably concludes that the Indemnifying Person is not diligently defending such Indemnified Person or (ii) if the Indemnified Person believes in good faith that there is a reasonable possibility that a Third-Party Claim may materially and adversely affect the ongoing business of the Buyer or SPACEHAB assuming such defense; providedIndemnified Person, that Buyer or SPACEHAB then the Indemnified Person shall be entitled to settle, compromise and defend (and to employ counsel of its choice) such Third-Party Claims; PROVIDED, HOWEVER, the Indemnifying Person shall have the right to participate in or monitor such the defense thereof and to employ counsel, at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its own expense, separate from the counsel with respect theretoemployed by the Indemnified Person, it being understood that the Indemnified Person shall control such defense. If the Seller Indemnified Person does not settle, compromise and defend such Third-Party Claim, the Indemnifying Person shall then have the right to contest and defend (but not settle) such Third-Party Claim. If the Indemnifying Person elects to defend or prosecute any other persons as provided above elect Third-Party Claim, the Indemnified Person shall agree to assume such defenseany settlement, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement discharge of such claim Third-Party Claim the Indemnifying Person may be effected recommend and that, by either party without its terms, discharges the other party's Indemnified Person and its Affiliates from full liability in connection with such Third-Party Claim; PROVIDED, HOWEVER, that, the Indemnifying Person shall not consent (which to, and the Indemnified Person shall not be unreasonably withheld) unless required to agree to, the entry of any judgment or enter into any settlement that (i) there is no finding provides for injunctive or admission of any violation of law and no effect on any other claims that may be made against such other party and non-monetary relief affecting the Indemnified Person or its Affiliates or (ii) does not include as an unconditional term thereof the sole relief provided giving of a release from all liability with respect to such Third-Party Claim by each claimant or plaintiff to each Indemnified Person that is monetary damages that are paid in full the subject of such Third-Party Claim. The settlement or consent to entry of judgment shall require the prior approval of the Indemnified Person. For purposes of this subparagraph, "consent to entry of judgment" shall be read to encompass failure by the party seeking Indemnifying Person to finally pursue and perfect any rights of appeal, including discretionary appellate review in the settlementnature of certiorari petition or otherwise.
Appears in 1 contract
Procedures Relating to Indemnification. Promptly (OTHER THAN FOR TAX CLAIMS). In order for an Indemnified Person to be entitled to any indemnification provided for under this Agreement (other than for Tax Claims) in respect of, arising out of or involving a claim or demand made by any Person against the Indemnified Person (a "Third-Party Claim"), such Indemnified Person must notify the Indemnifying Person in writing, and in reasonable detail, of the Third-Party Claim within 10 Business Days after the receipt by any party hereto such Indemnified Person of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Party") shall give written notice of the Third-Party Claim; PROVIDED, HOWEVER, that failure to give such claim (a "Notice of Claim") to notification shall not affect the party or parties obligated to provide indemnification provided hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, except to the extent known. The the Indemnifying Person shall have been actually prejudiced as a result of such failure of (except that the Indemnifying Person shall not be liable for any Losses incurred during the period in which the Indemnified Party Person failed to so notify give such notice). Thereafter, the Indemnified Person shall deliver to the Indemnifying Party shall not impair Person, within five Business Days after the Indemnified PartyPerson's ability receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Person relating to seek indemnification from the Third-Party Claim. If a Third-Party Claim is made against an Indemnified Person, the Indemnifying Party. The Indemnifying Party shall Person will be entitled to participate in the defense or settlement of such matter and thereof and, if it so chooses, to assume the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without thereof with counsel selected by the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), Person and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHABIndemnified Person. No compromise or settlement Should the Indemnifying Person so elect to assume the defense of such claim may be effected by either party without a Third-Party Claim, the other party's consent (which shall Indemnifying Person will not be unreasonably withheld) unless liable to the Indemnified Person for legal fees and expenses subsequently incurred by the Indemnified Person in connection with the defense thereof. If the Indemnifying Person assumes such defense, the Indemnified Person shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Person, it being understood that the Indemnifying Person shall control such defense. The Indemnifying Person shall be liable for the fees and expenses of counsel employed by the Indemnified Person for any period during which the Indemnifying Person has not assumed the defense thereof (i) there is no finding other than during any period in which the Indemnified Person shall have failed to give notice of the Third-Party Claim as provided above). If the Indemnifying Person chooses to defend or admission of prosecute any violation of law and no effect on any other claims that may be made against such other party Third-Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (iiupon the Indemnifying Person's request) the sole relief provided is monetary damages that provision to the Indemnifying Person of records and information which are paid reasonably relevant to such Third-Party Claim, and making employees available on a mutually convenient basis in full by the party seeking the settlement.manner specified in
Appears in 1 contract
Procedures Relating to Indemnification. Promptly In order for an Indemnified Person to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any Person against the Indemnified Person (a "Third-Party Claim"), such Indemnified Person must provide the Indemnifying Person with a Claim Notice regarding the Third-Party Claim promptly and in any event within ten (10) Business Days after the receipt by any party hereto such Indemnified Person of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Party") shall give written notice of the Third-Party Claim; provided, however, that failure to give such claim (a "Notice of Claim") to notification shall not affect the party or parties obligated to provide indemnification provided hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, except to the extent known. The the Indemnifying Person shall have been actually prejudiced as a result of such failure of (except that the Indemnifying Person shall not be liable for any expense incurred during the period in which the Indemnified Party Person failed to so notify give such notice). Thereafter, the Indemnified Person shall deliver to the Indemnifying Party shall not impair Person, within five (5) Business Days after the Indemnified PartyPerson's ability receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Person relating to seek indemnification from the Third-Party Claim. If a Third-Party Claim is made against an Indemnified Person, the Indemnifying Party. The Indemnifying Party shall Person will be entitled to participate in the defense or settlement of such matter thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Person. If the Third-Party Claim includes allegations for which the Indemnifying Person both would and the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall would not be obligated to indemnify the Indemnified Person, the Indemnifying Person and the Indemnified Person shall in that case jointly assume the defense thereof. Should the Indemnifying Person so elect to assume the defense of a Third-Party Claim, the Indemnifying Person will not be liable to the Indemnified Person for legal fees and expenses subsequently incurred by the Indemnified Person in connection with the defense thereof. If the Indemnifying Person assumes such defense, the Indemnified Person shall have the right to participate in the defense thereof and, at its own expense, to employ counsel reasonably acceptable to the Indemnifying Person, separate from the counsel employed by the Indemnifying Person, it being understood that the Indemnifying Person shall control such defense. The Indemnifying Person shall be liable for the fees and expenses of counsel employed by the Indemnified Person for any period during which the Indemnifying Person has not assumed the defense thereof (other than during any period in which the Indemnified Person shall have failed to give notice of the Third- Party Claim as provided above). If the Indemnifying Person chooses to defend or prosecute any Third-Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Person's request) the provision to the Indemnifying Person of records and information which are reasonably relevant to such Third-Party Claim, and making officers, directors, employees and agents of the Indemnified Person available on a mutually convenient basis to provide information, testimony at depositions, hearings or trials, and such other assistance as may be reasonably requested by the Indemnifying Person. Notwithstanding the foregoing, in the event a Third-Party Claim is made against an Indemnified Person as to which such Indemnified Person is entitled to seek indemnification hereunder and such Indemnified Person reasonably concludes that the Indemnifying Person lacks the financial and personnel resources to vigorously defend such Indemnified Person, that the Indemnifying Person has failed to assume the defense of the Indemnified Person, or that the Indemnifying Person is not diligently defending such Indemnified Person, then in each such case the Indemnified Person may elect to retain the defense of such Third-Party hereunder Claim and will be entitled to be reimbursed by the Indemnifying Person for its Losses incurred in such defense (including, without limitation, reasonable attorneys fees), such expenditures to be reimbursed promptly after submission of invoices therefor. Whether or not the Indemnifying Person shall have assumed the defense of a Third-Party Claim, the Indemnified Person shall not admit any settlement entered into liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the Indemnifying PartyPerson's prior written consent, consent (which consent shall not be unreasonably withheld, conditioned withheld or delayed). If The Indemnifying Person shall not admit any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel liability with respect thereto. If the Seller to, or any other persons as provided above elect to assume such defensesettle, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party discharge any Third-Party Claim without the other partyIndemnified Person's prior written consent (which consent shall not be unreasonably withheld) unless (i) there is no finding withheld or delayed); provided, however, that the Indemnified Person shall agree to any admission of any violation liability, settlement, compromise or discharge of law a Third-Party Claim that the Indemnifying Person may recommend and no effect on any other claims that may be made against by its terms obligates the Indemnifying Person to pay the full amount of the liability in connection with such other party Third-Party Claim and (ii) which releases the sole relief provided is monetary damages that are paid Indemnified Person completely in full by the party seeking the settlementconnection with such Third-Party Claim.
Appears in 1 contract
Samples: Asset Purchase Agreement (Integrated Defense Technologies Inc)
Procedures Relating to Indemnification. Promptly after the receipt by any In order for a party hereto of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Partyindemnified party") shall give to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any person against the indemnified party (a "Third Party Claim"), such indemnified party must notify the indemnifying party in writing, and in reasonable detail, of the Third Party Claim within 10 business days after receipt by such indemnified party of written notice of the Third Party Claim; provided, however, that failure to give such claim (a "Notice of Claim") to notification shall not affect the party or parties obligated to provide indemnification provided hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, except to the extent knownthe indemnifying party shall have been actually prejudiced as a result of such failure (except that the indemnifying party shall not be liable for any expenses incurred during the period in which the indemnified party failed to give such notice). The failure of the Indemnified Party to so notify the Indemnifying Party shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party. The Indemnifying Party indemnifying party shall be entitled to participate in the defense or settlement of such matter any Third Party Claim and, if it so chooses and acknowledges its obligation to indemnify the parties agree indemnified party therefor, to cooperate in any such assume the defense or settlement thereof with counsel selected by the indemnifying party and reasonably acceptable to give each other full access the indemnified party. Should the indemnifying party so elect to all information relevant thereto. The Indemnifying assume the defense of a Third Party Claim, the indemnifying party shall not be obligated liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. Notwithstanding the foregoing, in the event that the indemnified party reasonably determines, based on the advice of outside counsel, that there is a conflict of interest between the indemnified party and the indemnifying party in the defense of any Third Party Claim, (i) the indemnifying party shall not have the right to assume and direct the defense of such Third Party Claim on the indemnified party's behalf and (ii) the indemnifying party shall indemnify an Indemnified the indemnified party for all reasonable 42 37 legal fees and expenses reasonably incurred by the indemnified party in the defense thereof. If the indemnifying party so elects to assume the defense of any Third Party hereunder for Claim, all of the indemnified parties shall cooperate with the indemnifying party in the defense or prosecution thereof. Whether or not the indemnifying party shall have assumed the defense of a Third Party Claim, the indemnified party shall not admit any settlement entered into liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Partyindemnifying party's prior written consent, consent (which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or indemnifying party shall have assumed the defense of a Third Party Claim, the indemnified party shall agree to any other persons as provided above elect to assume such defensesettlement, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement discharge of a Third Party Claim which the indemnifying party may recommend and which by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such claim may be effected by either Third Party Claim, which releases the indemnified party without completely in connection with such Third Party Claim and imposes no nonmonetary obligation on the other indemnified party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Paxson Communications Corp)
Procedures Relating to Indemnification. Promptly In order for the -------------------------------------- Indemnified Party to be entitled to any indemnity provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any Person (other than Indemnitor) against the Indemnified Party (a "Third Party ----------- Claim"), such Indemnified Party must notify Indemnitor in writing, and in ----- reasonable detail, of the Third Party Claim within ten (10) business days after the receipt by any party hereto such Indemnified Party of written notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties the Third Party Claim (the "Indemnified Party") shall give written notice of such claim (a "Notice of Claim") to the party or parties obligated to provide indemnification hereunder (collectively, the "Indemnifying Party10 Day Period"); provided, stating however, that failure to give such notification ------------- -------- ------- shall not affect the nature and basis of such claim and the amount thereof, indemnity provided hereunder except to the extent known. The Indemnitor shall have been actually prejudiced as a result of such failure of (except that Indemnitor shall not be liable for any expenses incurred during the period subsequent to the 10 Day Period in which the Indemnified Party failed to so notify give such notice). Thereafter, the Indemnifying Indemnified Party shall not impair deliver to Indemnitor, within five (5) business days after the Indemnified Party's ability receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to seek indemnification from the Indemnifying Third Party Claim. If a Third Party Claim is made against an Indemnified Party. The Indemnifying Party , Indemnitor shall be entitled to participate in the defense or settlement thereof and, if it so chooses and acknowledges its obligation to indemnify the Indemnified Party therefor, to assume the defense thereof with counsel selected by Indemnitor; provided that such counsel is not reasonably objected to by the Indemnified -------- Party. Should Indemnitor so elect to assume the defense of a Third Party Claim, Indemnitor shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If Indemnitor assumes such matter defense, the Indemnified Party shall have the right to separate counsel (not reasonably objected to by Indemnitor), at its own expense, separate from the counsel employed by Indemnitor, it being understood that Indemnitor shall control such defense. Indemnitor shall be liable for the fees and expenses of counsel employed by the parties agree Indemnified Party for any period during which Indemnitor has failed to assume the defense of the Third Party Claim (other than during the period prior to the time the Indemnified Party shall have given notice of the Third Party Claim as provided above). If Indemnitor so elects to assume the defense of any Third Party Claim, each Indemnified Party shall cooperate with Indemnitor in any such the defense or settlement prosecution thereof. Such cooperation shall include the retention and (upon Indemnitor's request) the provision to give each other full access Indemnitor of records and information which are reasonably relevant to all such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information relevant theretoand explanation of any material provided hereunder. The Indemnifying Whether or not Indemnitor shall have assumed the defense of a Third Party Claim, Indemnified Party shall not be obligated to indemnify an Indemnified admit any liability with respect to, or settle, compromise or discharge, such Third Party hereunder for any settlement entered into Claim without the Indemnifying PartyIndemnitor's prior written consent, consent (which consent shall not be unreasonably withheld, conditioned or delayed). If Indemnitor shall have assumed the defense of a Third Party Claim, Indemnified Party shall agree to any Notice settlement, compromise or discharge of such Third Party Claim relates which Indemnitor may recommend and which by its terms obligates Indemnitor to a claim pay the full amount of the liability in connection with such Third Party Claim, and which releases such Indemnified Party completely in connection with such Third Party Claim and which does not otherwise adversely affect such Indemnified Party. Notwithstanding the foregoing, Indemnitor shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by a person Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or persons (other equitable relief or relief for other than by federalmoney damages against an Indemnified Party which such Indemnified Party reasonably determines, state after conferring with its outside counsel, cannot be separated from any related claim for money damages. If such equitable relief or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu other relief portion of the Buyer or SPACEHAB assuming such defense; providedThird Party Claim can be so separated from that for money damages, that Buyer or SPACEHAB Indemnitor shall be entitled to participate in or monitor such assume the defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If of the Seller or any other persons as provided above elect portion relating to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlementmoney damages.
Appears in 1 contract
Samples: Asset Purchase Agreement (Crown Castle International Corp)
Procedures Relating to Indemnification. Promptly after the receipt by any party hereto of notice of any claim, action, suit or proceeding of any third party which If a Third Party Claim is subject to indemnification hereunder, such party or parties (the "Indemnified Party") shall give written notice of such claim (a "Notice of Claim") to the party or parties obligated to provide indemnification hereunder (collectivelymade against an indemnified party, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, to the extent known. The failure of the Indemnified Party to so notify the Indemnifying Party shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party. The Indemnifying Party indemnifying party shall be entitled to participate in the defense or settlement thereof and, if it so chooses, at its sole cost and upon written notice to the indemnified party acknowledging its obligation to indemnify the indemnified party therefor in accordance with the terms of this Agreement, to assume the defense thereof with counsel selected by the indemnifying party; provided, however, that such matter counsel is reasonably satisfactory to the indemnified party. GE and GECS hereby acknowledge their obligation to indemnify the indemnified parties agree under Section 6.2 in respect of the Litigation listed in the Litigation Letter in accordance with the terms of this Agreement and, subject to cooperate any limitations set forth in this Article VI, GE and GECS intend to continue to defend against all such Litigation. GE and GECS shall be obligated to assume the defense of the Litigation listed in the Litigation Letter and all other Third Party Claims subject to indemnification pursuant to Section 6.2, except as to any such Litigation or Third Party Claims as to which PWG advises GE and GECS that PWG has elected not to permit GE and GECS to assume such defense or settlement and pursuant to give each other full access PWG's rights under this Article VI. Should the indemnifying party so elect to all information relevant thereto. The Indemnifying assume the defense of a Third Party Claim, the indemnifying party shall not be obligated liable to indemnify an Indemnified the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof, provided, however, that (i) if the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense and (ii) the indemnified party shall be entitled to employ separate counsel, at the expense of the indemnifying party, and to participate in the defense of such Third Party hereunder Claim if in the opinion of counsel to such indemnified party a conflict or potential conflict (including as to the availability of defenses) exists between such indemnified party and the indemnifying party that would make such separate representation advisable (provided that the indemnifying party shall only be responsible under this clause (ii) for the fees of one counsel in each relevant jurisdiction for all indemnified parties). The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any settlement period during which the indemnifying party has failed to assume the defense thereof. If the indemnifying party so elects to assume the defense of any Third Party Claim, the indemnified parties shall cooperate with the indemnifying party in the defense thereof. Such cooperation shall include the retention and (upon the indemnifying party's reasonable request) the provision to the indemnifying party of records and information of KP & Co. that are relevant to such Third Party Claim and that are in the possession of such indemnified party. Such cooperation shall not include the making available of any current employee of PWG or any of its Subsidiaries (other than KP & Co.), other than any such employee who has already entered into a cooperation agreement with respect to Litigation involving KP & Co. prior to the date hereof. In addition, if the indemnifying party so elects to assume the defense of any Third Party Claim, the indemnifying party shall (i) consult with the indemnified parties to determine litigation strategies, including the selection of the appropriate forum and determination to interpose defenses or to raise counterclaims, (ii) promptly advise the indemnified parties of all material developments in respect of each significant claim as they occur, (iii) consider in good faith all reasonable requests that the indemnified parties may make concerning the conduct of any such defenses or counterclaims. With respect to indemnification under Section 6.2 where GE or GECS has assumed the defense of any Third Party Claim, upon request of GE or GECS, PWG will cause KP & Co. to permit GE and GECS to assert any rights of KP & Co. which arose prior to the Closing or derived from the same facts or circumstances giving rise to such Third Party Claim and which may be the basis for a counterclaim or defense of such Third Party Claim. If the indemnifying party shall have assumed the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim which the indemnifying party may recommend and which by its terms obligates the indemnifying party to pay the full amount required to be paid under this Article VI by the indemnifying party in respect of such Third Party Claim (which payment shall be made contemporaneously with the indemnified party's agreement to such settlement, compromise or discharge), which releases the indemnified party completely in connection with such Third Party Claim and which would not otherwise adversely affect (other than to a de minimis degree) the indemnified party. The indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim the defense of which shall have been assumed by the indemnifying party in accordance with the terms hereof without the Indemnifying Partyindemnifying party's prior written consent, consent (which consent shall not be unreasonably withheld). The indemnified party shall have the right to admit any liability with respect to, conditioned or delayedsettle, compromise or discharge, any Third Party Claim the defense of which shall not have been assumed by the indemnifying party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (but shall be liable for the fees and expenses of counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks relief which, if granted, would impose on the indemnified parties non-monetary obligations or penalties. If any Notice such non-monetary relief portion of the Third Party Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to can be fully covered by the foregoing indemnity, as limited hereinseparated from that for money damages, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB indemnifying party shall be entitled to participate assume the defense of the portion relating to money damages. In conducting the defense of any Third Party Claim where non-monetary and monetary relief cannot be separated, the indemnified parties shall promptly advise the indemnifying parties of all material developments in respect of such Third Party Claim as they occur. The indemnification required by Sections 6.2 and 6.3 shall be made by periodic payments of the amount thereof during the course of the investigation or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they as and when bills are received or Losses are incurred. The indemnifying party shall retain counsel reasonably satisfactory pay to the Buyer indemnified party or SPACEHAB. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission its designee amounts owing under this Article VI in respect of any violation of law bills, judgments and no effect on any other claims that may be made against such other matters sufficiently in advance for the indemnified party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlementto make timely payments thereof.
Appears in 1 contract
Procedures Relating to Indemnification. Promptly Each Indemnified Party shall, promptly after the receipt by any party hereto of notice of the commencement of any claim against such Indemnified Party by a third party in respect of which indemnity may be sought from the Indemnifying Party hereunder, notify the Indemnifying Party in writing of the commencement thereof. The omission or delay of any Indemnified Party to so notify the Indemnifying Party of any such action shall not relieve the Indemnifying Party from any liability which it may have to such Indemnified Party (a) other than pursuant to this Section 10 or (b) under this Section 10 unless, and only to the extent that, such omission results in the Indemnifying Party's forfeiture of rights or defenses. In case any such claim shall be brought against any Indemnified Party by a third party, and the Indemnified Party shall notify the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate in the defense thereof, and if it so chooses, to assume the defense thereof at its own expense, upon written confirmation that such Indemnifying Party agrees to indemnify the Indemnified Party for any Losses arising out of or in connection with such claim, actionwith counsel satisfactory to such Indemnifying Party in its reasonable judgment; provided, suit however, that any Indemnified Party may retain separate counsel to participate in such defense at its own expense, and in the event the Indemnifying Party does not provide the written confirmation required by this sentence, the Indemnified Party may retain counsel to defend such claim and shall be entitled to reimbursement of the reasonable fees and disbursements of such counsel in accordance with this Section 10. Notwithstanding the foregoing, in any claim in which both the Indemnifying Party, on the one hand, and an Indemnified Party, on the other hand, are, or proceeding are reasonably likely to become, a party, such Indemnified Party shall have the right to employ separate counsel and to control its own defense of such claim if, in the opinion of counsel to such Indemnified Party, either (x) one or more defenses are available to the Indemnified Party that are not available to the Indemnifying Party or (y) a conflict or potential conflict exists between the Indemnifying Party, on the one hand, and such Indemnified Party, on the other hand, that would make such separate representation advisable; provided, however, that the Indemnifying Party (i) shall not be liable for the reasonable fees and expenses of more than one counsel to all Indemnified Parties and (ii) shall reimburse the Indemnified Parties for all of such reasonable fees and expenses of such counsel incurred in any action contemplated in (x) or (y) above between the Indemnifying Party and the Indemnified Parties or between the Indemnified Parties and any third party, as such expenses are incurred. The Indemnifying Party agrees that it will not, without the prior written consent of the Indemnified Parties, settle, compromise or consent to the entry of any judgment in any pending or threatened claim relating to the matters contemplated hereby (if any Indemnified Party is a party thereto or has been threatened to be made or would reasonably be expected to be made a party thereto) unless such settlement, compromise or consent includes an unconditional release of each Indemnified Party from all liability arising or that may arise out of such claim. The Indemnifying Party shall not be liable for any settlement of any claim effected against an Indemnified Party without its written consent. The rights accorded to an Indemnified Party hereunder shall be in addition to any rights that any Indemnified Party may have by separate agreement (including, without limitation, the Investors' Rights Agreement dated as of the date hereof among the Company and certain investors listed therein) or pursuant to the federal securities laws. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any claim brought against any Indemnified Party by a third party which is subject (and shall be liable for the reasonable fees and expenses of counsel incurred by the Indemnified Party in defending such claim) if such claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of such claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. In the event any Indemnified Party should have an indemnification hereunder, claim against the Indemnifying Party under this Section 10 that does not involve a claim by a third party being asserted against or sought to be collected from such party or parties (the "Indemnified Party") , the Indemnified Party shall give written deliver notice of such claim (a "Notice of Claim") to the party or parties obligated to provide indemnification hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, to the extent known. The failure of the by an Indemnified Party to so notify the Indemnifying Party shall not impair relieve the Indemnifying Party from any liability that it may have to such Indemnified Party, except to the extent that the Indemnifying Party has been actually and materially prejudiced by such failure. If the Indemnifying Party does not notify the Indemnified Party's ability to seek indemnification from Party within ten (10) business days following its receipt of such notice that the Indemnifying Party. The Party disputes such claim, such claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under this Section 10 and the Indemnifying Party shall be entitled pay the amount of such liability to participate the Indemnified Party on demand, or in the defense or settlement case of any notice in which the amount of the claim is estimated, on such matter and the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and later date when the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect theretofinally determined. If the Seller or any other persons as provided above elect Indemnifying Party disputes its liability with respect to assume such defenseclaim in a timely manner, they the Indemnified Party and the Indemnifying Party shall retain counsel reasonably satisfactory proceed in good faith to the Buyer or SPACEHAB. No compromise or settlement negotiate a resolution of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlementdispute.
Appears in 1 contract
Samples: Series C Preferred Stock Purchase Agreement (WRC Media Inc)
Procedures Relating to Indemnification. Promptly after (a) Each Person to be indemnified pursuant to SECTION 8.1 or SECTION 8.2 (an "INDEMNIFIED PARTY") agrees to give prompt notice (a "NOTICE OF THIRD PARTY CLAIM") to the receipt by any party hereto indemnifying parties of notice the assertion of any claim, action, suit or proceeding the commencement of any third suit, action or proceeding, brought against or sought to be collected from such indemnified party which is subject to indemnification hereunder(each, such party or parties (the "Indemnified Party") shall give written notice of such claim (a "Notice of Claim") to the party or parties obligated to provide indemnification hereunder (collectively, the "Indemnifying PartyTHIRD PARTY CLAIM"), stating in respect of which indemnity may be sought by such indemnified party under SECTION 8.1 or SECTION 8.2; provided that the nature and basis of omission so to promptly notify the indemnifying parties with respect to a Third Party Claim brought against or sought to be collected from such claim and indemnified party will not relieve the amount thereof, indemnifying party from any liability which it may have to such indemnified party under SECTION 8.1 or SECTION 8.2 except to the extent knownthat such failure has materially prejudiced such indemnifying party with respect to the defense of such Third Party Claim. The failure of If any indemnified party shall seek indemnity under SECTION 8.1 or SECTION 8.2 with respect to a Third Party Claim brought against or sought to be collected from such indemnified party, the Indemnified Party to so notify the Indemnifying Party shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party. The Indemnifying Party indemnifying party shall be entitled to participate in therein and, to the extent that it wishes, to assume and direct the defense or and settlement thereof with counsel satisfactory to such indemnified party; provided that if such indemnifying party shall so assume the defense and settlement of such matter and the parties agree to cooperate in any such defense Third Party Claim brought against or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller sought to be fully covered collected from such indemnified party, such Third Party Claim shall be conclusively deemed a matter in respect of which such indemnified party is entitled to be indemnified by the foregoing indemnitysuch indemnifying party under SECTION 8.1 or SECTION 8.2, as limited hereinthe case may be; and provided further that if any Third Party Claim brought against or sought to be collected from any indemnified party includes a request for injunctive or other equitable relief that, the Seller may elect if granted, is reasonably likely to defend against have a Material Adverse Effect or a similar effect on such claim at its expenseindemnified party, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB indemnified party shall be entitled to participate control and direct the defense and settlement thereof and in such event the legal and other expenses subsequently incurred by such indemnified party in connection with the defense thereof shall be paid by the indemnifying party. After notice from the indemnifying party to an indemnified party of its election to assume and direct the defense and settlement of a Third Party Claim brought against or monitor sought to be collected from such indemnified party which such indemnifying party is entitled to assume and direct under the terms hereof, the indemnifying party shall not be liable to such indemnified party under SECTION 8.1 or SECTION 8.2, as the case may be, for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense at its expense thereof other than reasonable costs of investigation; provided that such indemnified party shall have the right to employ counsel to represent such party if in the reasonable judgment of such party, it is advisable for such party to be represented by separate counsel because the representation of both the indemnified party and Seller will fully cooperate with Buyer or SPACEHAB and its the indemnifying party in such matter could present such counsel with respect theretoa potential conflict of interest and in such event the fees and expenses of such separate counsel shall be paid by the indemnifying party. If Notwithstanding the Seller or foregoing provisions of this SECTION 8.3(a), the indemnifying party shall not (A) without the prior written consent of an indemnified party, effect any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of any pending or threatened proceeding in respect of which such claim may indemnified party is, or with reasonable foreseeability, could have been a party and indemnity could have been sought hereunder by such indemnified party for a Third Party Claim brought against or sought to be collected from such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability arising out of such proceeding (provided that, whether or not such a release is required to be obtained, the indemnifying party shall remain liable to such indemnified party in accordance with SECTION 8.1 or SECTION 8.2 in the event that a Third Party Claim is subsequently brought against or sought to be collected from such indemnified party) or (B) be liable for any settlement of any Third Party Claim brought against or sought to be collected from an indemnified party effected by either party without the other such indemnifying party's written consent (which shall not be unreasonably withheld) unless (i) ), but if settled with such indemnifying party's written consent, or if there is no finding a final judgment for the plaintiff in any such Third Party Claim, such indemnifying party agrees (to the extent stated above) to indemnify the indemnified party from and against any loss, liability, claim, damage or admission expense by reason of any violation of law and no effect on any other claims that such settlement or judgment. The indemnification required by SECTION 8.1 or SECTION 8.2, as the case may be, shall be made against such other party by periodic payments of the amount thereof during the course of the investigation or defense, as and (ii) the sole relief provided when bills are received or loss, liability, claim, damage or expense is monetary damages that are paid in full by the party seeking the settlementincurred.
Appears in 1 contract
Samples: Real Estate Acquisition Agreement (Apartment Investment & Management Co)
Procedures Relating to Indemnification. Promptly after the receipt by any a party hereto indemnified under Section 7 or 8 above of written notice of any loss, claim, action, suit damage or proceeding liability in respect of any third party which is subject to indemnification indemnity may be sought by it hereunder, such indemnified party will, if a claim is to be made against an indemnifying party, notify the indemnifying party thereof in writing, but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability (otherwise than under Section 7 or parties (8 hereof, as the "Indemnified Party"case may be) shall give written notice of such claim (a "Notice of Claim") that it may have to the party or parties obligated to provide indemnification hereunder (collectivelyindemnified party. Thereafter, the "Indemnifying Party"), stating the nature and basis of such claim indemnified party and the amount thereofindemnifying party shall consult, to the extent knownappropriate, with a view to minimizing the cost to the indemnifying party of its obligations hereunder. The failure In case any indemnified party receives written notice of any loss, claim, damage or liability in respect of which indemnity may be sought by it hereunder and it notifies the Indemnified Party to so notify indemnifying party thereof, the Indemnifying Party shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party. The Indemnifying Party shall indemnifying party will be entitled to participate in therein, and to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from the indemnified party, to assume the defense or settlement of such matter and the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate thereof with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer indemnified party; PROVIDED, HOWEVER, that if the parties against which any loss, claim, damage or SPACEHAB. No compromise or settlement liability arises include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that defenses available to it create a conflict of interest for the counsel selected by the indemnifying party under the code of professional responsibility applicable to such counsel, the indemnified party shall have the right to select one separate counsel to assume such legal defenses and otherwise to participate in the defenses of such claim may be effected loss, claim, damage or liability on behalf of the indemnified party. Upon receipt by either the indemnified party without of notice from the other party's consent (which indemnifying party of its selection so to assume the defense of such loss, claim, damage or liability and approval by the indemnified party of counsel, the indemnifying party shall not be unreasonably withheld) liable to the indemnified party under Section 7 or 8 hereof, as the case may be, for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof unless (i) there is no finding or admission the indemnified party shall have employed such counsel in connection with the assumption of any violation of law and no effect on any other claims that may be made against such other party and legal defenses in accordance with the proviso to the next preceding sentence, (ii) the sole relief provided indemnifying party shall not have employed and continued to employ counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party shall have authorized in writing the employment of separate counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party shall, without prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which the indemnified party is monetary damages or is entitled or subject to be a party and the indemnified party is entitled to indemnity hereunder unless such settlement includes an unconditional release of the indemnified party from all liability on any claims that are paid in full by the subject matter of such action. No indemnifying party seeking shall be liable for any settlement, compromise or consent to the settlemententry of any order adjudicating or otherwise disposing of any loss, claim, damage or liability effected without its consent.
Appears in 1 contract
Samples: Mirant Americas Generating Inc
Procedures Relating to Indemnification. Promptly In order for an Indemnified Person to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any Person against the Indemnified Person (a "THIRD PARTY CLAIM"), such Indemnified Person must notify the Indemnifying Person in writing, and in reasonable detail, of the Third Party Claim within ten Business Days after the receipt by any party hereto such Indemnified Person of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Party") shall give written notice of the Third Party Claim; PROVIDED, HOWEVER, that failure to give such claim (a "Notice of Claim") to notification shall not affect the party or parties obligated to provide indemnification provided hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, except to the extent known. The the Indemnifying Person shall have been actually prejudiced as a result of such failure of (except that the Indemnifying Person shall not be liable for any expenses incurred during the period in which the Indemnified Party Person failed to so notify give such notice). Thereafter, the Indemnified Person shall deliver to the Indemnifying Party shall not impair Person, within five Business Days after the Indemnified PartyPerson's ability receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Person relating to seek indemnification from the Third Party Claim. If a Third Party Claim is made against an Indemnified Person (except as provided in Section 12.1(f)), the Indemnifying Party. The Indemnifying Party shall Person will be entitled to participate in the defense or settlement thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Person and reasonably satisfactory to the Indemnified Person. Should the Indemnifying Person so elect to assume the defense of a Third Party Claim, the Indemnifying Person will not be liable to the Indemnified Person for legal and other professional adviser expenses subsequently incurred by the Indemnified Person in connection with the defense thereof. If the Indemnifying Person assumes such matter and defense, the parties agree Indemnified Person shall have the right to cooperate participate in any such the defense or settlement thereof and to give each other full access to all information relevant theretoemploy counsel, at its own expense, separate from the counsel employed by the Indemnifying Person, it being understood that the Indemnifying Person shall control such defense. The Indemnifying Person shall be liable for the fees and expenses of counsel employed by the Indemnified Person for any period during which the Indemnifying Person has not assumed the defense thereof (other than during any period in which the Indemnified Person shall have failed to give notice of the Third Party Claim as provided above). If the Indemnifying Person chooses to defend or prosecute any Third Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Person's request) the provision to the Indemnifying Person of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Person shall have assumed the defense of a Third Party Claim, (i) the Indemnified Person shall not be obligated to indemnify an Indemnified admit any liability with respect to, or settle, compromise or discharge, such Third Party hereunder for any settlement entered into Claim without the Indemnifying PartyPerson's prior written consent, consent (which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages Indemnifying Person shall not, without the Indemnified Party's consent, settle, compromise or discharge (A) any Third Party Claim if such settlement, compromise or discharge imposes any equitable obligations on the Indemnified Party or (B) any Third Party Claim for an amount that are together with all other amounts therefore paid in full by the party seeking Indemnifying Party under Section 12.1 (a) or (b), as the settlementcase may be, would exceed $20,000,000 in the aggregate. All Tax Claims shall be governed by Section 7.4.
Appears in 1 contract
Procedures Relating to Indemnification. Promptly after (a) Each person to be indemnified pursuant to SECTION 8.1 or SECTION 8.2 (an "INDEMNIFIED PARTY") agrees to give prompt notice (a "NOTICE OF THIRD PARTY CLAIM") to the receipt by any indemnifying party hereto of notice the assertion of any claim, action, suit or proceeding the commencement of any third suit, action or proceeding, brought against or sought to be collected from such indemnified party which is subject to indemnification hereunder(each, such party or parties (the "Indemnified Party") shall give written notice of such claim (a "Notice of Claim") to the party or parties obligated to provide indemnification hereunder (collectively, the "Indemnifying PartyTHIRD PARTY CLAIM"), stating in respect of which indemnity may be sought by such indemnified party under SECTION 8.1 or SECTION 8.2; provided that the nature and basis of omission so to promptly notify the indemnifying party with respect to a Third Party Claim brought against or sought to be collected from such claim and indemnified party will not relieve the amount thereof, indemnifying party from any liability which it may have to such indemnified party under SECTION 8.1 or SECTION 8.2 except to the extent knownthat such failure has materially prejudiced such indemnifying party with respect to the defense of such Third Party Claim. The failure of If any indemnified party shall seek indemnity under SECTION 8.1 or SECTION 8.2 with respect to a Third Party Claim brought against or sought to be collected from such indemnified party, the Indemnified Party to so notify the Indemnifying Party shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party. The Indemnifying Party indemnifying party shall be entitled to participate in therein and, to the extent that it wishes, to assume and direct the defense or and settlement thereof with counsel satisfactory to such indemnified party; provided that if such indemnifying party shall so assume the defense and settlement of such matter and the parties agree to cooperate in any such defense Third Party Claim brought against or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller sought to be fully covered collected from such indemnified party, such Third Party Claim shall be conclusively deemed a matter in respect of which such indemnified party is entitled to be indemnified by the foregoing indemnitysuch indemnifying party under SECTION 8.1 or SECTION 8.2, as limited hereinthe case may be; and provided further that if any Third Party Claim brought against or sought to be collected from any indemnified party includes a request for injunctive or other equitable relief that, the Seller may elect if granted, is reasonably likely to defend against have a Material Adverse Effect or a similar effect on such claim at its expenseindemnified party, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB indemnified party shall be entitled to participate control and direct the defense and settlement thereof and in such event the legal and other expenses subsequently incurred by such indemnified party in connection with the defense thereof shall be paid by the indemnifying party. After notice from the indemnifying party to an indemnified party of its election to assume and direct the defense and settlement of a Third Party Claim brought against or monitor sought to be collected from such indemnified party which such indemnifying party is entitled to assume and direct under the terms hereof, the indemnifying party shall not be liable to such indemnified party under SECTION 8.1 or SECTION 8.2, as the case may be, for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense at its expense thereof other than reasonable costs of investigation; provided that such indemnified party shall have the right to employ counsel to represent such party if in the reasonable judgment of such party, it is advisable for such party to be represented by separate counsel because the representation of both the indemnified party and Seller will fully cooperate with Buyer or SPACEHAB and its the indemnifying party in such matter could present such counsel with respect theretoa potential conflict of interest and in such event the fees and expenses of such separate counsel shall be paid by the indemnifying party. If Notwithstanding the Seller or foregoing provisions of this SECTION 8.3(a), the indemnifying party shall not (a) without the prior written consent of an indemnified party, effect any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of any pending or threatened proceeding in respect of which such claim may indemnified party is, or with reasonable foreseeability, could have been a party and indemnity could have been sought hereunder by such indemnified party for a Third Party Claim brought against or sought to be collected from such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability arising out of such proceeding (provided that, whether or not such a release is required to be obtained, the indemnifying party shall remain liable to such indemnified party in accordance with SECTION 8.1 or SECTION 8.2 in the event that a Third Party Claim is subsequently brought against or sought to be collected from such indemnified party) or (b) be liable for any settlement of any Third Party Claim brought against or sought to be collected from an indemnified party effected by either party without the other such indemnifying party's written consent (which shall not be unreasonably withheld) unless (i) ), but if settled with such indemnifying party's written consent, or if there is no finding a final judgment for the plaintiff in any such Third Party Claim, such indemnifying party agrees (to the extent stated above) to indemnify the indemnified party from and against any loss, liability, claim, damage or admission of any violation of law and no effect on any other claims that expense by reason or such settlement or judgment. The indemnification required by SECTION 8.1 or SECTION 8.2, as the case may be, shall be made against such other party by periodic payments of the amount thereof during the course of the investigation or defense, as and (ii) the sole relief provided when bills are received or loss, liability, claim, damage or expense is monetary damages that are paid in full by the party seeking the settlementincurred.
Appears in 1 contract
Samples: Acquisition Agreement (Apartment Investment & Management Co)
Procedures Relating to Indemnification. Promptly In order for an Indemnified Person to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any Person against the Indemnified Person (a “Third-Party Claim”), such Indemnified Person must provide the Indemnifying Person with a Claim Notice regarding the Third-Party Claim promptly and in any event within ten (10) Business Days after the receipt by any party hereto such Indemnified Person of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Party") shall give written notice of the Third-Party Claim; provided, however, that failure to give such claim (a "Notice of Claim") to notification shall not affect the party or parties obligated to provide indemnification provided hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, except to the extent known. The the Indemnifying Person shall have been actually prejudiced as a result of such failure of (except that the Indemnifying Person shall not be liable for any expense incurred during the period in which the Indemnified Party Person failed to so notify give such notice). Thereafter, the Indemnified Person shall deliver to the Indemnifying Party shall not impair Person, within five (5) Business Days after the Indemnified Party's ability Person’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Person relating to seek indemnification from the Third-Party Claim. If a Third-Party Claim is made against an Indemnified Person, the Indemnifying Party. The Indemnifying Party shall Person will be entitled to participate in the defense or settlement of such matter thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Person. If the Third-Party Claim includes allegations for which the Indemnifying Person both would and the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall would not be obligated to indemnify an the Indemnified Person, the Indemnifying Person and the Indemnified Person shall in that case jointly assume the defense thereof. Should the Indemnifying Person so elect to assume the defense of a Third-Party hereunder Claim, the Indemnifying Person will not be liable to the Indemnified Person for legal fees and expenses subsequently incurred by the Indemnified Person in connection with the defense thereof. If the Indemnifying Person assumes such defense, the Indemnified Person shall have the right, at its own expense, to participate in the defense thereof and, at its own expense, to employ counsel reasonably acceptable to the Indemnifying Person, separate from the counsel employed by the Indemnifying Person, it being understood that the Indemnifying Person shall control such defense. The Indemnifying Person shall be liable for the fees and expenses of counsel employed by the Indemnified Person for any settlement entered into period during which the Indemnifying Person has not assumed the defense thereof (other than during any period in which the Indemnified Person shall have failed to give notice of the Third-Party Claim as provided above). If the Indemnifying Person chooses to defend or prosecute any Third-Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Person’s request) the provision to the Indemnifying Person of records and information which are reasonably relevant to such Third-Party Claim, and making officers, directors, employees and agents of the Indemnified Person available on a mutually convenient basis to provide information, testimony at depositions, hearings or trials, and such other assistance as may be reasonably requested by the Indemnifying Person. Whether or not the Indemnifying Person shall have assumed the defense of a Third-Party Claim, the Indemnified Person shall not admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the Indemnifying Party's Person’s prior written consent, consent (which consent shall not be unreasonably withheld, conditioned withheld or delayed). If The Indemnifying Person shall not admit any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel liability with respect thereto. If the Seller to, or any other persons as provided above elect to assume such defensesettle, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party discharge any Third-Party Claim without the other party's Indemnified Person’s prior written consent (which consent shall not be unreasonably withheldwithheld or delayed) unless (i) there is no finding any such admission, settlement, compromise or admission of any violation of law and no effect on any other claims that may be made against discharge also releases the Indemnified Person completely in connection with such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlementThird-Party Claim.
Appears in 1 contract
Procedures Relating to Indemnification. Promptly In order for an Indemnified Person to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any Person against the Indemnified Person (a "Third-Party Claim"), such Indemnified Person must notify the Indemnifying Person in writing, and in reasonable detail, of the Third-Party Claim within 10 Business Days after the receipt by any party hereto such Indemnified Person of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Party") shall give written notice of the Third-Party Claim; provided, however, that failure to give such claim (a "Notice of Claim") to notification shall not affect the party or parties obligated to provide indemnification provided hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, except to the extent known. The failure of the Indemnified Party to so notify the Indemnifying Person shall have been actually prejudiced as a result of such failure. If a Third-Party shall not impair the Claim is made against an Indemnified Party's ability to seek indemnification from Person, the Indemnifying Party. The Indemnifying Party shall Person will be entitled to participate in the defense or settlement thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Person and reasonably satisfactory to the Indemnified Person. Should the Indemnifying Person so elect to assume the defense of a Third-Party Claim, the Indemnifying Person will not be liable to the Indemnified Person for legal fees and expenses subsequently incurred by the Indemnified Person in connection with the defense thereof. If the Indemnifying Person assumes such matter and defense, the parties agree Indemnified Person shall have the right to cooperate participate in any such the defense or settlement thereof and to give each other full access to all information relevant theretoemploy counsel, at its own expense, separate from the counsel employed by the Indemnifying Person, it being understood that the Indemnifying Person shall control such defense. The Indemnifying Person shall be liable for the fees and expenses of counsel employed by the Indemnified Person for any period during which the Indemnifying Person has not assumed the defense thereof (other than during any period in which the Indemnified Person shall have failed to give notice of the Third-Party Claim as provided above). If the Indemnifying Person chooses to defend or prosecute any Third-Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Person's request) the provision to the Indemnifying Person of Records and information which are reasonably relevant to such Third-Party Claim, and making employees available on a mutually convenient basis in the manner specified in Section 7.5 to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Person shall have assumed the defense of a Third-Party Claim, the Indemnified Person shall not be obligated to indemnify an Indemnified admit any liability with respect to, or settle, compromise or discharge, such Third-Party hereunder for any settlement entered into Claim without the Indemnifying PartyPerson's prior written consent, consent (which consent shall not be unreasonably withheld, conditioned withheld or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlement.
Appears in 1 contract
Procedures Relating to Indemnification. Promptly after the receipt by any In order for a party hereto of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties (the "Indemnified Partyindemnified party") shall give to be entitled to any indemnification provided for under Section 24(a) in respect of, arising out of or involving a claim or demand made by any person against the indemnified party (a "Third Party Claim"), such indemnified party must notify the indemnifying party in writing, and in reasonable detail, of the Third Party Claim within 10 business days after receipt by such indemnified party of written notice of the Third Party Claim; provided, however, that failure to give such claim (a "Notice of Claim") to notification shall not affect the party or parties obligated to provide indemnification provided hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, except to the extent known. The the indemnifying party shall have been actually prejudiced as a result of such failure of (except that the Indemnified Party to so notify the Indemnifying Party indemnifying party shall not impair be liable for any expenses incurred during the Indemnified Partyperiod in which the indemnified party failed to give such notice). Thereafter, the indemnified party shall deliver to the indemnifying party, within 5 business days after the indemnified party's ability receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to seek indemnification from the Indemnifying PartyThird Party Claim. The Indemnifying If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense or settlement thereof and, if it so chooses and acknowledges its obligation to indemnify the indemnified party therefor, to assume the defense thereof with counsel selected by the indemnifying party; provided that such counsel is reasonably acceptable to the indemnified party. Should the indemnifying party so elect to assume the defense of such matter and a Third Party Claim, the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party indemnifying party shall not be obligated liable to indemnify an Indemnified Party hereunder the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof, except to the extent required in connection with the cooperation by indemnified parties pursuant to the succeeding paragraph. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (reasonably acceptable to the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any settlement entered into period during which the indemnifying party has failed to assume the defense thereof (other than during the period prior to the time the indemnified party shall have given notice of the Third Party Claim as provided above). If the indemnifying party so elects to assume the defense of any Third Party Claim, all of the indemnified parties shall cooperate with the indemnifying party in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party shall have assumed 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 Partyindemnified party's prior written consent, consent (which consent shall not be unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to a claim by a person or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or indemnifying party shall have assumed the defense of a Third Party Claim, the indemnified party shall agree to any other persons as provided above elect to assume such defensesettlement, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such claim may be effected by either Third Party Claim and which releases the indemnifying party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against completely in connection with such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlementThird Party Claim.
Appears in 1 contract
Procedures Relating to Indemnification. Promptly after the receipt by any In order for a party hereto of notice of any claim, action, suit or proceeding of any third party which is subject to indemnification hereunder, such party or parties --------------------------------------- (the "Indemnified Partyindemnified party") shall give to be entitled to any indemnification provided for under this Agreement (other than a claim with respect to Taxes) in respect of, arising out of or involving a claim or demand made by any person against the indemnified party (a "Third Party Claim"), such indemnified party must notify the indemnifying party in writing, and in reasonable detail, of the Third Party Claim within 10 business days after receipt by such indemnified party of written notice of the Third Party Claim; provided, however, that failure to give such claim (a "Notice of Claim") to -------- ------- notification shall not affect the party or parties obligated to provide indemnification provided hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim and the amount thereof, except to the extent known. The the indemnifying party shall have been actually prejudiced as a result of such failure of (except that the Indemnified Party to so notify the Indemnifying Party indemnifying party shall not impair be liable for any expenses incurred during the Indemnified Partyperiod in which the indemnified party failed to give such notice). Thereafter, the indemnified party shall deliver to the indemnifying party, within five business days after the indemnified party's ability receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to seek indemnification from the Indemnifying PartyThird Party Claim. The Indemnifying If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense or settlement thereof and, if it so chooses, to assume the defense thereof with counsel selected by the indemnifying party and reasonably acceptable to the indemnified party. Should the indemnifying party so elect to assume the defense of such matter and a Third Party Claim, the parties agree to cooperate in any such defense or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party indemnifying party shall not be obligated liable to indemnify an Indemnified Party hereunder the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof, including the opportunity to keep fully informed as to all matters which might affect the amount of any claims for indemnification to be made hereunder, and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any settlement entered into period during which the indemnifying party has failed to assume the defense thereof (other than during the period prior to the time the indemnified party shall have given notice of the Third Party Claim as provided above). If the indemnifying party so elects to assume the defense of any Third Party Claim, the indemnified party shall cooperate with the indemnifying party in the defense 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 a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The indemnifying party shall reimburse the indemnified party for its reasonable out- of-pocket costs of such cooperation. Whether or not the indemnifying party shall have assumed 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 Partyindemnifying party's prior written consent. If the indemnifying party shall have assumed the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim which consent the indemnifying party may recommend and which by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim; provided, however, that, where the -------- ------- Seller is the indemnifying party, the indemnified party shall not be unreasonably withheldrequired to agree to any such settlement, conditioned compromise or delayeddischarge if the Company's 57 board of directors shall have determined by resolution that such settlement, compromise or discharge could reasonably expect to have a Material Adverse Effect on the business of the Company or the Subsidiary. If any Notice Notwithstanding the foregoing, if the Seller is the indemnifying party and recommends a settlement, compromise or discharge that would require or have the effect of Claim relates requiring the Company or a Subsidiary to modify or amend an existing Government Contract or to otherwise take or omit to take certain actions that would not have a claim by a person Material Adverse Effect on the Company or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited hereinSubsidiary, the Seller may elect indemnified party shall not unreasonably withhold its consent to defend against such claim at its expensesettlement, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party without the other party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlementdischarge.
Appears in 1 contract
Samples: Recapitalization and Stock Purchase and Sale Agreement (Firearms Training Systems Inc)
Procedures Relating to Indemnification. Promptly after Any claims for indemnification made hereunder shall be accompanied by a schedule or schedules setting forth the receipt Indemnitee's calculation of such claim. If a claim shall be made by any party hereto of notice of any claimtaxing authority, actionwhich, suit or proceeding of any third party which is subject if successful, might result in an indemnity payment to indemnification hereunderBuyer pursuant to Section 3(a), such party or parties (the "Indemnified Party") Buyer shall give written notice notify Sellers in writing of such claim (a "Notice of ClaimTAX CLAIM") within ten (10) days of receipt of any notice from the taxing authority, or such earlier time that would allow Sellers to the party or parties obligated timely respond to provide indemnification hereunder (collectively, the "Indemnifying Party"), stating the nature and basis of such claim or demand, and shall give Sellers such other information with respect thereto as Sellers may reasonably request. Sellers may, at their own expense, participate in and assume the amount thereofdefense of any such claim, to suit, action, litigation or proceeding (including any Tax audit). If Sellers assume such defense, Sellers shall control all proceedings taken in connection with such Tax Claim (including selection of counsel) and, without limiting the extent knownforegoing and notwithstanding anything else contained herein, may in their sole discretion pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any taxing authority with respect thereto, and may, in their sole discretion, either pay the Tax claimed and sue for a refund where applicable law permits such refund suits or coxxxst the Tax Claim in any permissible manner. The failure of Notwithstanding the Indemnified Party to so notify the Indemnifying Party foregoing, Sellers shall not impair the Indemnified Party's ability to seek indemnification from the Indemnifying Party. The Indemnifying Party shall be entitled to participate in the defense or settlement of such matter and the parties agree to cooperate in settle any such defense claim, suit, action, litigation or settlement and to give each other full access to all information relevant thereto. The Indemnifying Party shall not be obligated to indemnify an Indemnified Party hereunder for any settlement entered into proceeding without the Indemnifying PartyBuyer's prior written consent, consent (which consent shall not be unreasonably withheld). Sellers and Buyer shall jointly control all proceedings taken in connection with any Tax Claim relating solely to Taxes of the Companies or the Subsidiaries for a Straddle Period. Buyer, conditioned the Companies and the Subsidiaries shall cooperate reasonably with Sellers in contesting any Tax Claim, which cooperation shall include, without limitation, the retention and (upon Sellers' request) the provision to Sellers of records and information which are reasonably relevant to such Tax Claim, and making employees available on a mutually convenient basis to provide additional information or delayedexplanation of any material provided hereunder or to testify at proceedings relating to such Tax Claim. If In no case shall Buyer, the Companies or the Subsidiaries settle or otherwise compromise any Notice of Tax Claim relates relating to a claim by Seller Year or a person Straddle Period without Sellers' prior written consent (which consent shall not be unreasonably withheld). Neither party shall settle a Tax Claim relating solely to Taxes of a Company or persons (other than by federal, state or local income tax authorities or by the Buyer or SPACEHAB), and the amount of such claim is acknowledged by Seller to be fully covered by the foregoing indemnity, as limited herein, the Seller may elect to defend against such claim at its expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at its expense and Seller will fully cooperate with Buyer or SPACEHAB and its counsel with respect thereto. If the Seller or any other persons as provided above elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim may be effected by either party a Subsidiary for a Straddle Period without the other party's prior written consent (which consent shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other party and (ii) the sole relief provided is monetary damages that are paid in full by the party seeking the settlement).
Appears in 1 contract
Samples: Sharing and Indemnification Agreement (Hubbell Inc)
