Procedures. If (i) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give written notice to the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party.
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Procedures. (a) If any Person who or which is entitled to seek indemnification under Section 10.2 (i) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and ") receives notice of the Stockholder are sometimes referred assertion or commencement of any Third-Party Claim against such Indemnified Party with respect to as which the Person against whom or which such indemnification is being sought (an "Indemnifying Party," and ") is obligated to provide indemnification under this Agreement, the Indemnified Party will give such Indemnifying Party reasonably prompt written notice thereof, but in any UAG Third event not later than 20 days after receipt of such written notice of such Third-Party Claim. Such notice by the Indemnified Party will describe the Third-Party Claim in reasonable detail, will include copies of all available material written evidence thereof and any Stockholder Third will indicate the estimated amount, if reasonably estimable, of the Damages that have been or may be sustained by the Indemnified Party. The Indemnifying Party Claim is sometimes referred will have the right to as a "Third Party Claim," in each case as the context so requires)participate in, such Indemnified Party shall give or, by giving written notice to the Indemnified Party, to assume, the defense of any Third-Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which will be reasonably satisfactory to the Indemnified Party), and the Indemnified Party will cooperate in good faith in such defense.
(b) If, within 20 days after giving notice of a Third-Party Claim to an Indemnifying Party pursuant to Section 10.3(a), an Indemnified Party receives written notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such Third-Party Claim as provided in the last sentence of Section 10.3(a), the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that if the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third-Party Claim within ten days after receiving written notice from the Indemnified Party or if the Indemnified Party reasonably believes the Indemnifying Party has failed to take such steps or if the Indemnifying Party has not undertaken fully to indemnify the Indemnified Party in respect of all Damages relating to the matter, the Indemnified Party may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs and expenses paid or his obligation to provide indemnification hereunderincurred in connection therewith; provided, provided however, that any failure to so notify the Indemnifying Party shall not relieve them from be liable for the costs and expenses of more than one counsel for all Indemnified Parties in any liability that it or he may have to one jurisdiction. Without the prior written consent of the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall will not enter into any settlement of any Third Third-Party Claim (except with which would lead to liability or create any financial or other obligation on the written consent part of such the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, or which provides for injunctive or other non-monetary relief applicable to the Indemnified Party) which , or does not include as an unconditional term thereof the giving by the claimant release of all Indemnified Parties. If a firm offer is made to settle a Third-Party Claim without leading to liability or the plaintiff creation of a financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoingoffer, the Indemnifying Party shall not be entitled will give written notice to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against that effect. If the Indemnified Party whichfails to consent to such firm offer within ten days after its receipt of such notice, if successfulthe Indemnified Party may continue to contest or defend such Third-Party Claim and, could materially interfere in such event, the maximum liability of the Indemnifying Party as to such Third-Party Claim will not exceed the amount of such settlement offer. The Indemnified Party will provide the Indemnifying Party with the businessreasonable access during normal business hours to books, operations, assets, condition (financial or otherwise) or prospects records and employees of the Indemnified Party necessary in connection with the Indemnifying Party's defense of any Third-Party Claim which is the subject of a claim for indemnification by an Indemnified Party hereunder.
(c) Any claim by an Indemnified Party on account of Damages which does not result from a Third-Party Claim (a "Direct Claim") will be asserted by giving the Indemnifying Party reasonably prompt written notice thereof. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of Damages that has been or may be sustained by the Indemnified Party. The Indemnifying Party will have a period of 20 days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such 20 day period, the Indemnifying Party will be deemed to have rejected such claim, in which event the Indemnified Party will be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.
(d) A failure to give timely notice or to include any specified information in any notice as provided in Section 10.3(a), 10.3(b) or 10.3
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Procedures. If (ia) A claim for indemnification for any Stockholder Event of Breach occurs or is alleged and matter not involving a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Third-Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give be asserted by written notice to the Party from whom indemnification is sought.
(b) Promptly after a Person entitled to indemnification hereunder (the “Indemnified Party”) has received notice or has knowledge of any Third-Party claim, demand, action or proceeding, or threatened claim, demand, action or proceeding (a “Third-Party Claim”) which could result in a Loss for which such Party may be entitled to indemnification under this ARTICLE 12, the Indemnified Party shall promptly deliver to the Party against whom indemnification is sought under this ARTICLE 12 (the “Indemnifying Party”) written notice of such Third-Party Claim (the “Claim Notice”), which Claim Notice shall include, to the extent known, the nature and basis of its or his obligation to provide such Third-Party Claim, the basis for indemnification hereunder, provided and the amount in dispute under such Third-Party Claim; provided, however, that any the failure of the Indemnified Party to so notify provide the Claim Notice shall not release or waive the Indemnifying Party shall not relieve them from any liability that it or he may have its obligations to the Indemnified Party under this ARTICLE 9. If 12 except to the extent that the Indemnifying Party is actually prejudiced as a result of such notice relates failure.
(c) Following receipt of the Claim Notice, the Indemnifying Party may elect at any time to a Third assume and thereafter conduct the defense and settlement, of any Third-Party Claim subject to any such indemnification claim with counsel of the Indemnifying Party’s choice and to settle or compromise any such Third-Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such the Indemnified Party shall have cooperate in all respects with the right, but not the obligation, to participate at its own expense in the defense thereof by counsel conduct of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure defense by the Indemnifying Party to notify and/or the settlement of such Indemnified Party of its or their election to defend any such Third Third-Party Claim within fifteen (15) days after notice thereof shall have been given to by the Indemnifying Party; provided, however, that the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense will not approve of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlementsettlement or compromise with respect to the Third-Party Claim without the Indemnified Party’s prior written approval (which shall not be unreasonably withheld, except with conditioned, or delayed), unless the written consent terms of such settlement provide for a complete release of the claims that are the subject of such action, claim, or proceeding in favor of the Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to control the defense of, and the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in assume the defense of, any Third-Party Claim that seeks relief other than monetary damages against the Indemnified Party and that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages.
(d) The Parties agree to cooperate fully in connection with the defense, negotiation, or settlement of any claim for indemnification arising from a Third-Party Claim. Such cooperation will include the retention and, upon the request of the party defending, negotiating or settling the claim, the provision to such party of records and information which are reasonably relevant to such Third-Party Claim, and making employees and other Representatives reasonably available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder.
(e) If the Indemnifying Party fails or refuses to undertake the defense of such Third-Party Claim within sixty (60) calendar days after the claim for indemnification has been tendered to the Indemnifying Party by the Indemnified Party, pursuant to and in accordance with Section 12.6(c), and or if the Indemnifying Party later fails to conduct in good faith the defense or withdraws from such defense, the Indemnified Party shall be entitled have the right to have sole control over, (i) undertake the defense or settlement of any Third such claim with counsel of its own choosing, with the Indemnifying Party Claim being responsible for the reasonable costs and expenses of such defense as Losses hereunder if and to the extent that such claim is determined to be a claim for which such Indemnified Party is entitled to be defended, indemnified, held harmless or reimbursed under this ARTICLE 12, and (ii) settle or compromise, or attempt to settle or compromise, the Third Third-Party Claim seeks an orderClaim; provided, injunction or other equitable relief against however, that the Indemnified Party whichshall not settle or compromise such Third-Party Claim without the Indemnifying Party’s prior written consent (which shall not be unreasonably withheld, if successfulconditioned, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partydelayed).
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Procedures. If 8.3.1 The party or parties seeking indemnification under Section 8.2 (ithe "Indemnified Party") agrees to give prompt notice to the party or parties against whom indemnity is sought (the "Indemnifying Party") of the assertion of any Stockholder Event claim, or the commencement of Breach occurs any suit, action or is alleged proceeding in respect of which indemnity may be sought under such Section and a UAG Indemnified will provide the Indemnifying Party asserts such information with respect thereto in its possession that the Stockholder Indemnifying Party may reasonably request; PROVIDED, HOWEVER, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted been actually materially prejudiced as a result of which such failure.
8.3.2 In the Stockholder may become obligated to case of a UAG third party claim, the Indemnified Party hereundershall be entitled to exercise full control of the defense, compromise or settlement of any third party claim, investigation, action, suit or proceeding unless the Indemnifying Party within a reasonable time after the giving of notice of such indemnity claim by the Indemnified Party shall: (i) deliver a written confirmation to such Indemnified Party that the indemnification provisions of Section 8.2 are applicable to such claim, investigation, action, suit or proceeding and that the Indemnifying Party will indemnify such Indemnified Party in respect of such claim, action or proceeding pursuant to the terms of Section 8.2, (ii) a UAG Event of Breach occurs or is alleged and a Stockholder notify such Indemnified Party asserts that UAG has become obligated in writing of the Indemnifying Party's intention to a Stockholder assume the defense thereof and (iii) retain legal counsel reasonably satisfactory to such Indemnified Party pursuant to SECTION 9.2conduct the defense of such claim, investigation, action, suit or if proceeding.
8.3.3 If the Indemnifying Party so assumes the defense of any UAG Third Party Claim is begunsuch claim, made investigation, action, suit or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9proceeding in accordance herewith, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), then such Indemnified Party shall give written notice to cooperate with the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided in any manner that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it reasonably may request in connection with the defense, compromise or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possiblesettlement thereof. If the Indemnifying Party fails timely to defendso assumes the defense of any such claim, contest investigation, action, suit or otherwise protect against such Third Party Claimproceeding, such the Indemnified Party shall have the right to do soemploy separate counsel and to participate in (but not control) the defense, including, without limitation, the right to make any compromise or settlement thereof, but the fees and expenses of such counsel shall be the expense of such Indemnified Party unless (i) the Indemnifying Party has agreed to pay such fees and expenses, (ii) any relief other than the payment of money damages is sought against the Indemnified Party or (iii) such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given advised by its regular outside counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party shall be deemed or that a waiver by conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, such action would reasonably be expected (in which case the Indemnifying Party shall notnot have the right to control the defense, in the defense compromise or settlement of such Third action on behalf of the Indemnified Party), and in any such case described in clauses (i), (ii) or (iii) the reasonable fees and expenses of one such separate counsel, and one local counsel, if necessary, shall be borne by the Indemnifying Party. No Indemnified Party Claim, shall settle or compromise or consent to entry of any judgment with respect to any such action for which it is entitled to indemnification hereunder without the prior consent of the Indemnifying Party, which consent shall not be unreasonably withheld or enter into any settlementdelayed, except with unless the written Indemnifying Party shall have failed, after reasonable notice thereof, to undertake control of such action in the manner provided above in this Section 8.3 to the extent the Indemnifying Party was entitled to do so pursuant to this Section 8.3. The Indemnifying Party shall not, without the consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement settle or compromise or consent to entry of any Third Party Claim judgment with respect to any such claim, investigation, action, suit or proceeding (except with x) in which any relief other than the written consent payment of money damages is or may be sought against such Indemnified Party66 Party or (y) which that does not include as an unconditional term thereof the giving by the claimant claimant, party conducting such investigation, plaintiff or the plaintiff petitioner to such Indemnified Party of a full release from all liability in with respect of to such Third Party Claim. Notwithstanding the foregoingclaim, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of)action, and the Indemnified Party shall be entitled to have sole control over, the defense suit or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partyproceeding.
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Procedures. If (i) any Stockholder Event of Breach occurs or is alleged and a UAG Promptly after receipt by an Indemnified Party asserts that of notice of the Stockholder have become obligated commencement of any action, suit or proceeding by a person not a party to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result this Agreement in respect of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party will seek indemnification hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requiresAction"), such the Indemnified Party shall give written notice to will notify the Indemnifying Party of its or his obligation party required to provide indemnification hereunder(the "Indemnifying Party") in writing, provided that but any failure to so notify the Indemnifying Party shall not relieve them it from any liability that it or he may have under this Section 11.3, except to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist extent that the Indemnifying Party is prejudiced by the failure to the extent reasonably possiblegive such notice. If the The Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, participate in the defense of such Third Party ClaimAction and to assume control of such defense (including settlement thereof) with counsel reasonably acceptable to such Indemnified Party; provided however, that: (i) the Indemnified Party shall be permitted to participation the defense of such Third Party Action and to employ counsel as its own expense (which shall not constitute legal expenses subject to indemnification) to assist in the handling of such Third Party Action; (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before settlement of or ceasing to defend such Third Party Action, if such action would adversely affect the Indemnified Party; (iii) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which that does not include as an the unconditional term thereof the giving by the claimant or the plaintiff to such release of each Indemnified Party a full release from all liability in respect of under such Third Party Claim. Notwithstanding the foregoing, Action; (iv) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of)of any Third Party Action unless it has confirmed in writing its assumption of such defense and continues to defend same reasonably and in good faith; (v) after the Indemnifying Party's assumption of the defense of such Third Party Action hereunder, the Indemnifying Party shall not be responsible for any legal expenses of the Indemnified Party and the Indemnified Party shall be entitled to have sole control overwill not admit any liability, settle, compromise or discharge the claim underlying such Third Party Action without the Indemnifying Party's prior written consent; (vi) if the Indemnifying Party does not assume the defense or settlement of any such Third Party Claim to the extent the Third Party Claim seeks an orderPart Action, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with shall have the business, operations, assets, condition (financial or otherwise) or prospects right to defend and/or settle same in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party; (vii) the Indemnifying Party will promptly reimburse the Indemnified PartyParty in cash, check or wire transfer periodically upon receipt of an invoice therefor with supporting documentation.
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Procedures. If (i) All claims by any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that shall be asserted and resolved in accordance with the Stockholder have become obligated following provisions. If any claim or demand for which an Indemnifying Party would be liable to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder an Indemnified Party is sometimes referred asserted against or sought to as an "be collected from such Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as by a third party (a "Third Party Claim," in each case as the context so requires"), such the Indemnified Party shall with reasonable promptness (but in no event later than ten (10) days after the Third Party Claim is so asserted or sought against the Indemnified Party) notify in writing the Indemnifying Party of such Third Party Claim enclosing a copy of all pages served and stating with reasonable specificity the circumstances of the Indemnified Party's claim for indemnification; provided, however, that any failure to give written such notice will not waive any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually prejudiced. After receipt by the Indemnifying Party of such notice, then upon reasonable notice from the Indemnifying Party to the Indemnified Party, or upon the request of the Indemnified Party, the Indemnifying Party shall defend, manage and conduct any proceedings, negotiations or communications involving any claimant whose claim is the subject of the Indemnified Party's notice to the Indemnifying Party as set forth above, and shall take all actions necessary, including but not limited to the posting of its such bond or his obligation other security as may be required by any governmental authority, so as to provide indemnification hereunderenable the Third Party Claim to be defended against or resolved without expense or other action by the Indemnified Party. Upon request of the Indemnifying Party, provided the Indemnified Party shall, to the extent it may legally do so and to the extent that any failure to so notify it is compensated in advance by the Indemnifying Party shall not relieve them from for any liability that it or he costs and expenses thereby incurred: (i) take such action as the Indemnifying Party may have to the Indemnified Party under this ARTICLE 9. If reasonably request in connection with such notice relates to a Third Party Claimaction, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist (ii) allow the Indemnifying Party to dispute such action in the extent reasonably possible. If name of the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have and conduct a defense to such action on behalf of the right to do so, including, without limitation, the right to make any compromise or settlement thereofIndemnified Party, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to payiii) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given render to the Indemnifying Party shall be deemed a waiver by all such assistance as the Indemnifying Party of its or their right to defend may reasonably request in connection with such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), dispute and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partydefense.
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Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and a UAG An Indemnified Party asserts seeking indemnification under Sections 11.1 or 11.2 shall give prompt written notice to Seller, in the case of claims made by a Buyer Indemnified Party, or to Buyer, in the case of claims made by a Seller Indemnified Party, of the assertion of any claim that does not involve an Action or Proceeding brought by a third party (a “Third Party Proceeding”). The notice shall describe in reasonable detail the Stockholder have become obligated nature of the claim, contain an estimate of the amount of Losses attributable to the claim to the extent feasible and state the basis of the request for indemnification under this Agreement.
(b) If an Indemnified Party receives notice of a UAG Third Party Proceeding for which the Indemnified Party may assert an indemnification claim under Sections 11.1 or 11.2 against the Indemnifying Party, then the Indemnified Party shall give notice of such proceeding to Seller or Buyer, as applicable, as soon as practicable after the time that such Indemnified Party receives written notice of such claim. The Indemnifying Party may assume the defense of any such Third Party Proceeding by notice to the Indemnified Party no later than fifteen (15) Business Days after receipt of notice from the Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated preceding sentence. Any failure by either party to a UAG Indemnified Party hereunder, or (iigive the requisite notice within the time specified in this Section 11.3(b) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give written notice to will not relieve the Indemnifying Party of its or his the obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to indemnify the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such the obligation of the Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist allow the Indemnifying Party to defend pursuant to this Section 11.3(b) except to the extent reasonably possible. If that the Indemnifying Party fails timely to defend, contest or otherwise protect against such defense of any Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure Proceeding is materially prejudiced by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen delay.
(15c) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular a Third Party ClaimProceeding pursuant to Section 11.3(b), then the Indemnifying Party may defend and conduct any proceedings or negotiations in connection with the Third Party Proceeding, take all other required steps or proceedings to settle or defend any Third Party Proceeding, and employ counsel of its choice reasonably satisfactory to the Indemnified Party to contest such Third Party Proceeding in the name of the Indemnified Party or otherwise; provided, however, that in no event shall notthe Indemnifying Party settle, or agree to any other resolution of, any Third Party Proceeding without the Indemnified Party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed, if such settlement or other resolution is binding on the Indemnified Party, unless the settlement or other resolution results in no finding or admission of violation of any Legal Requirements or any violation of the rights of any Person and the only relief provided is monetary damages by the Indemnifying Party.
(d) If the Indemnifying Party does not assume the defense of (having been given a proper opportunity to do so), or if after so assuming the Indemnifying Party fails to vigorously defend, any Third Party Proceeding, then the Indemnified Party may defend against such Third Party Proceeding in a manner it deems reasonably appropriate; provided, however, that in no event shall the Indemnified Party settle, or agree to any other resolution of, any Third Party Proceeding without the Indemnifying Party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
(e) The Indemnified Party shall have the right to participate in the defense of any Third Party Proceeding related to any indemnified Losses where the defense has been and continues to be assumed by the Indemnifying Party, at the Indemnified Party’s sole cost and expense, and the costs and expenses of that participation shall not be Losses subject to indemnification.
(f) Each party shall reasonably cooperate, and cause their respective Affiliates to reasonably cooperate, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement prosecution of any Third Party Claim (except Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith; provided that all such costs and expenses incurred in respect thereof shall constitute Losses subject to indemnification in accordance with the written consent terms, conditions and limitations of such Indemnified Partythis Article XI.
(g) which does not include as an unconditional term thereof Notwithstanding anything to the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability contrary contained in respect of such Third Party Claim. Notwithstanding the foregoingthis Agreement, the Indemnifying Party shall not be entitled to control (but procedures for all Tax Proceedings shall be entitled to participate at their own expense in the defense ofgoverned exclusively by Section 9.1(h) (and not this Section 11.3), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party.
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Procedures. If (i) any Stockholder Event of Breach occurs or is alleged and a UAG In order for the Indemnified Party asserts that to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a Third Party Claim, the Stockholder have become obligated to a UAG Indemnified Party pursuant must notify the Indemnifying Party in writing of the Third Party Claim (a "Claim Notice"), which must be accompanied by a copy of the written notice of the Third Party Claimant asserting the Third Party Claim; but the failure to SECTION 9.1give such notification promptly (so long as a valid Claim Notice is given before the expiration of the applicable period) shall not affect the Indemnified Party's right to indemnification except to the extent the Indemnifying Party shall have been prejudiced as a result of such failure. Thereafter, or if any Stockholder's the Indemnified Party shall deliver to the Indemnifying Party copies of all other notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim.
(ii) If a Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as against an "Indemnified Party" and UAG and , the Stockholder are sometimes referred Indemnifying Party shall be entitled to as an "participate in the defense thereof and, if its so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party," and any UAG Third . Should the Indemnifying Party Claim and any Stockholder Third Party Claim is sometimes referred so elect to as assume the defense of a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give written notice to the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have be liable to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such for any legal expenses incurred by the Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in connection with the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possiblethereof, except as provided below. If the Indemnifying Party fails timely to defendassumes such defense, contest or otherwise protect against such Third Party Claim, such the Indemnified Party shall have the right to do soparticipate in the defense thereof and to employ counsel, includingat its own expense, without limitationseparate from the counsel employed by the Indemnified Party. Additionally, the right to make any compromise or settlement thereof, and such Indemnified Indemnifying Party shall be entitled responsible for the reasonable fees and expenses of counsel incurred by the Indemnified Party as was reasonably necessary to recover respond timely to legal process for any period after the entire Cost thereof from Claim Notice is given during which the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated not assumed the defense thereof, if and to pay) as the result of extent that the Indemnifying Party is responsible to indemnify for such Third Party Claim. Failure by If the Indemnifying Party to notify such Indemnified Party does not assume the defense of its or their election to defend any such a Third Party Claim within fifteen (15) twenty days after notice thereof shall have been given the giving by the Indemnified Party to the Indemnifying Party of a valid Claim Notice with respect to a Third Party Claim, the Indemnifying Party shall be deemed a waiver liable to the Indemnified Party for the reasonable fees and expenses of counsel employed by the Indemnified Party if and to the extent that the Indemnified Party is responsible to indemnify for such Third Party Claim. If the Indemnifying Party chooses to defend any Third Party Claim, the Indemnified Party shall cooperate in the defense thereof. Such cooperation shall include the retention and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of its or their right records and information which are relevant to defend such Third Party Claim, and making employees available, at no cost, on a mutually convenient basis to provide additional information, an explanation of any material provided and to act as a witness or respond to legal process. Whether or not the Indemnified Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld). If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party shall not, may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in the defense of connection with such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with which releases the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability completely in respect of connection with such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party.
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Procedures. (a) Any claim under Section 9.2 or Section 9.3 shall be made in a ----------- ----------- written statement signed by the party seeking indemnification which shall specify in reasonable detail each individual item of Damage and the estimated amount thereof, the date such item was claimed or the facts giving rise to such claim were discovered, the basis for any alleged liability and the nature of the breach or claim to which each such item is related.
(b) If the indemnifying party does not pay the amount specified in any such statement within thirty (i30) days after it has been delivered by the party seeking indemnification, the party seeking indemnification may enforce its right in accordance with law.
(c) The party seeking indemnification in respect of any Stockholder Event third party claim shall give the indemnifying party prompt notice of Breach occurs or is alleged and a UAG Indemnified Party asserts any Proceeding which might give rise to liability of the indemnifying party for indemnification hereunder; provided, that failure to give the indemnifying party prompt notice will not relieve such indemnifying party of any liability to the indemnified party hereunder, except to the extent the indemnifying party demonstrates that the Stockholder defense of such action is prejudiced by the indemnified party's failure to give such notice. If the indemnifying party wishes to contest any third party claim, it will have become obligated the option to a UAG Indemnified Party pursuant to SECTION 9.1defend, or if any Stockholderat the indemnifying party's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9expense, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give written notice to the Indemnifying Party of its or his obligation to provide indemnification hereundermatter, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability indemnified party (or in the case of the Company or the Subsidiary, that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party entity itself) shall have the right, but not the obligationat its own cost and expense, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claimclaim or, consent if the indemnifying party elects not to entry defend the claim, to conduct the defense on its own behalf. If the indemnifying party conducts the defense of any judgment a claim, neither party (or enter into any settlementin the case of the Company or the Subsidiary, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not that entity itself) will enter into any settlement agreement without the other party's consent; provided, that the indemnified party (or in the case of the Company or the Subsidiary, that entity itself) shall not object to any Third Party Claim proposed settlement which requires only the payment of money by the indemnifying party and does not involve any admissions or stipulations by the indemnified party, the Company, the Subsidiary, or the Schools or any injunctive or similar relief or any other contractual obligations affecting the indemnified party (except or in the case of the Company or the Subsidiary, that entity itself) or their respective business and operations. The indemnified party shall cooperate (and the Purchaser shall cause the Company and the Subsidiary to cooperate) with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense indemnifying party in the defense of)defense, and the Indemnified Party shall be entitled to have sole control over, the defense compromise or settlement of any Third Party Claim claim for which indemnification is sought. If the indemnifying party elects not to conduct the defense of such claim, the indemnified party (or in the case of the Company or the Subsidiary, that entity itself) shall be permitted to settle or compromise any such claim on such terms as it deems appropriate and such settlement or compromise shall not prejudice the rights to indemnification hereunder.
(d) Notwithstanding Section 9.7(c), if an indemnified party --------------- determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the extent indemnifying party, assume the Third Party Claim seeks an orderexclusive right to defend, injunction compromise, or other equitable relief against settle such Proceeding, but the Indemnified Party which, if successful, could materially interfere with indemnifying party will not be bound by any determination of a Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld).
(e) A claim for indemnification for any matter not involving a third- party claim may be asserted by notice to the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partyparty from whom indemnification is sought.
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Procedures. (a) If a Buyer Indemnified Party or Seller Indemnified Party that is entitled to seek indemnification under Section 7.3 (an “Indemnified Party”) has a claim for indemnification under this Article VII, other than a claim for indemnification that involves a Third Party Claim, it shall give written notice (a “Claim Notice”) to Seller or Buyer, as applicable (in each case, the “Indemnifying Party”), which notice shall describe in reasonable detail to the extent then known the nature of such claim and the factual basis and circumstances surrounding the same and set forth an estimate of the amount of Damages attributable to such claim. The Indemnifying Party shall, within 30 days after its receipt of a Claim Notice, notify the Indemnified Party in writing as to whether the Indemnifying Party admits or disputes the claim described in the Claim Notice. If the Indemnifying Party gives written notice that it admits the indemnification claim described in the Claim Notice, then the Indemnified Party shall be entitled to indemnification pursuant to the provisions of this Article VII, and subject to the limitations hereof, with respect to the estimated amount of Damages stated in the Claim Notice. If the Indemnifying Party notifies the Indemnified Party in writing that it disputes the claim for indemnification, or that it admits the entitlement of the Indemnified Party to indemnification under this Article VII with respect thereto but disputes the amount of the Damages in connection therewith, then in either of such cases the indemnification claim described in the Claim Notice shall be a disputed indemnification claim that must be resolved by settlement between the Indemnified Party and the Indemnifying Party or by proceedings commenced in an appropriate court of competent jurisdiction by either the Indemnifying Party or the Indemnified Party or by any other mutually agreeable method.
(b) If an Indemnified Party receives notice of the assertion or commencement of any claim, demand, action, suit or proceeding made or brought by any Person who or which is not a Party to this Agreement (a “Third Party Claim”) against such Indemnified Party with respect to which the Person against whom or which such indemnification is being sought is obligated to provide indemnification under this Agreement, the Indemnified Party will give the Indemnifying Party prompt written notice thereof, but in any event not later than 10 Business Days after receipt of such written notice of such Third Party Claim (the “Third Party Claim Notice”). Such notice by the Indemnified Party will describe the Third Party Claim in reasonable detail, will include copies of all available material documentation, and will indicate the estimated amount, if reasonably practicable, of the Damages that have been or may be sustained by the Indemnified Party. Within 15 days after receipt of the Third Party Claim Notice, the Indemnifying Party shall notify the Indemnified Party in writing that the Indemnifying Party either (i) any Stockholder Event disputes the right of Breach occurs or is alleged and a UAG the Indemnified Party asserts that to indemnification under this Article VII with respect to the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event admits the right of Breach occurs or is alleged and a Stockholder the Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant indemnification under this Article VII with respect to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and Damages arising in connection with the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give written notice to . The failure of the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have respond to the Indemnified Party within such 15-day period after receipt of a Third Party Claim Notice shall be deemed to constitute a response by the Indemnifying Party that it disputes the right of such Indemnified Party to indemnification under this ARTICLE 9. Article VII with respect to that Third Party Claim.
(c) If such notice relates the Indemnifying Party admits in writing that the Indemnified Party is entitled to indemnification under this Article VII with respect to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect then in such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to payi) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver diligently defend the Third Party Claim with counsel approved by the Indemnifying Indemnified Party of its (which approval shall not be unreasonably withheld, conditioned or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, delayed) and (ii) the Indemnifying Party shall not enter into any settlement of any the Third Party Claim unless such settlement is approved in writing by the Indemnified Party (except which approval shall not be unreasonably withheld, conditioned or delayed); provided, however, that with respect to any claim related to Taxes, such claim shall be defended by the written consent applicable taxpayer subject to the control of the Indemnifying Party and the approval rights of the foregoing clause (ii). The costs and expenses of such defense shall be payable by the Indemnifying Party. If, however, (i) the Indemnifying Party at any time fails to so conduct the defense of the Third Party Claim or (ii) the Indemnified Party (A) determines in good faith that there is a reasonable probability that a proceeding may adversely affect it other than as a result of monetary damages for which it would be entitled to full indemnification under this Agreement or (B) upon consultation with counsel has reasonably determined in its good faith judgment that joint representation by counsel for the Indemnified Party and the Indemnifying Party violates or could violate applicable ethical and professional rules, then the Indemnified Party (upon notice to the Indemnifying Party) which does not include as an unconditional term thereof may participate, together with counsel for the giving by Indemnifying Party, in the claimant defense, compromise or the plaintiff to such Indemnified Party a full release from all liability in respect settlement of such Third Party Claim. Notwithstanding Claims, and the foregoing, reasonable costs and expenses of such participation shall be payable by the Indemnifying Party.
(d) If the Indemnifying Party disputes the right of the Indemnified Party to indemnification under this Article VII with respect to the Third Party Claim described in a Third Party Claim Notice, then in such event (i) the Indemnified Party may defend the Third Party Claim with counsel of its choice; provided, however, that the Indemnified Party (x) shall diligently defend such Third Party Claim and (y) may not enter into a settlement thereof without obtaining approval of the Indemnifying Party (which approval shall not be entitled unreasonably withheld, conditioned or delayed), unless the Indemnified Party will not be seeking indemnification for any amounts paid pursuant to control such settlement thereof or for any other consequences, or such settlement would not prejudice the rights of the Indemnifying Party, and (but ii) the amount of Damages incurred by the Indemnified Party in connection with such Third Party Claim shall be entitled a disputed indemnification claim to participate at their own expense in be resolved by settlement between the defense of), Indemnifying Party and the Indemnified Party shall be entitled or by proceedings commenced in an appropriate court of competent jurisdiction by either the Indemnifying Party or the Indemnified Party or by any other mutually agreeable method.
(e) A failure to have sole control over, give timely notice or to include any specified information in any notice as provided in Section 7.4(a) or 7.4(b) will not affect the defense rights or settlement obligations of any Third Party Claim hereunder, except and only to the extent the Third that, as a result of such failure, any Party Claim seeks an order, injunction that was entitled to receive such notice or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial information was deprived of its right to recover any payment under its applicable insurance coverage or otherwise) or prospects was otherwise prejudiced as a result of the Indemnified Partysuch failure.
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Procedures. If Claims for indemnification under this Agreement will be asserted and resolved as follows:
(a) Any Buyer Indemnified Party or Seller Indemnified Party seeking indemnification under this Agreement (an “Indemnified Party”) with respect to any claim asserted against the Indemnified Party by a third party (“Third Party Claim”) in respect of any matter that is subject to indemnification under Section 11.2 or Section 11.3 will (i) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified promptly notify the other Party asserts that (the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "“Indemnifying Party," and any UAG ”) of the Third Party Claim and any Stockholder Third (ii) as promptly as practicable transmit to the Indemnifying Party a written notice (a “Claim is sometimes referred to as a "Notice”) describing in reasonable detail and with reasonable specificity the nature of the Third Party Claim," in each case as the context so requires, a copy of all material papers served with respect to such claim (if any), such the basis of the Indemnified Party shall Party’s request for indemnification under this Agreement and an estimate of any Losses suffered with respect thereto (if reasonably determinable). Notwithstanding the foregoing, the delay or failure to give written the notice to provided in, or in accordance with, this Section 11.4(a) will not relieve the Indemnifying Party of its or his obligation obligations under this Article 11, except to provide indemnification hereunder, provided that any failure to so notify the extent such Indemnifying Party shall not relieve them from any liability that it is actually prejudiced by such delay or he may failure.
(b) The Indemnifying Party will have the right to defend the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such (except in the case of an Excluded Matter) if the Indemnifying Party promptly notifies the Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice (and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid within twenty (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (1520) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of having received any Claim Notice) that it is exercising its or their right to defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party assumes notifies the Indemnified Party that the Indemnifying Party elects to assume the defense of the particular Third Party Claim, then the Indemnifying Party shall notwill have the right to defend such Third Party Claim with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party, in all appropriate proceedings, to a final conclusion or settlement at the discretion of the Indemnifying Party in accordance with this Section 11.4(b). The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnifying Party will not enter into any settlement agreement without the written consent of the Indemnified Party (which consent will not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, such consent will not be required if (i) the settlement agreement contains a complete and unconditional general release by the third party asserting the Third Party Claim of all Indemnified Parties affected by the Third Party Claim, (ii) the settlement agreement does not contain any admission of fault or material sanction or restriction upon or otherwise materially adversely affect the conduct or operation of any business conducted by the Indemnified Party or its Affiliates, and (iii) the Indemnifying Party pays or causes to be paid in full all amounts arising out of such settlement. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 11.4(b), and the Indemnified Party will bear its own costs and expenses with respect to such participation unless, in the reasonable judgment of the Indemnified Party, there is a conflict of interest (including the availability to the Indemnified Party of one or more defenses that are not available to the Indemnifying Party) that would prevent the same counsel from representing both the Indemnified Party and the Indemnifying Party, then the Indemnified Party will be entitled to retain one separate counsel who shall have a right to reasonably participate in but not control the defense of such Third Party Claim, consent to entry the reasonable costs and expenses of any judgment or enter into any settlement, except with which will be borne by the written consent of such Indemnified Indemnifying Party. In additionNotwithstanding the foregoing, if a Third Party Claim (A) seeks non- monetary relief which, if granted, could materially adversely affect the Indemnified Party or any of its Affiliates and that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot be readily separated from any related claim for money damages (provided that, if such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages) or (B) involves a criminal proceeding (each, an “Excluded Matter”), then the Indemnified Party shall have the right to defend and control the applicable Third Party Claim.
(c) If the Indemnifying Party does not notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 11.4(b) within twenty (20) days after receipt of any Claim Notice (or notifies the Indemnified Party within such time period that it elects not to defend the Indemnified Party) or thereafter fails to reasonably diligently conduct such defense, then the Indemnified Party shall have the right to defend itself against the applicable Third Party Claim, and be reimbursed for its reasonable cost and expense (but only if the Indemnified Party is actually entitled to indemnification hereunder) in regard to the Third Party Claim with counsel reasonably selected by the Indemnified Party, in all appropriate proceedings. In such circumstances or in the case of an Excluded Matter, the Indemnified Party will defend any such Third Party Claim in good faith and have full control of such defense and proceedings; provided, however, that the Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent will not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 11.4(c) or in the case of an Excluded Matter, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(d) If requested by the Party controlling the defense of a Third Party Claim, the other Party agrees, at the sole cost and expense of the controlling Party (provided that such cost and expense shall nonetheless be that of the Indemnifying Party if the Indemnified Party is actually entitled to indemnification hereunder), to cooperate with the controlling Party and its counsel in contesting any Third Party Claim (except that the controlling Party elects to contest, including providing reasonable access to documents, records and information. In addition, such other Party will make its personnel reasonably available at no cost to the controlling Party for conferences, discovery, proceedings, hearings, trials or appeals as may be reasonably requested by the controlling Party. Such other Party also agrees to cooperate with the written consent controlling Party and its counsel in the making of such any related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person.
(e) A claim for indemnification for any matter not involving a Third Party Claim will be asserted by notice to the Party from whom indemnification is sought as promptly as practicable after the date on which the Indemnified Party becomes aware of facts giving rise to the claim for indemnification, which notice will describe in reasonable detail and with reasonable specificity the nature of the claim and the basis of the Indemnified Party’s request for indemnification under this Agreement and will include, to the extent estimable, a reasonable estimate of the Losses suffered with respect thereto (if reasonably determinable) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party (a full release from all liability in respect of such Third Party “Direct Claim”). Notwithstanding the foregoing, the delay or failure to give the notice provided in, or in accordance with, this Section 11.4(e) will not relieve the Indemnifying Party of its obligations under this Article 11, except to the extent such Indemnifying Party is actually prejudiced by such delay or failure.
(f) An Indemnifying Party may reply to a Direct Claim made under Section 11.4(e) by written notice given to the Indemnified Party, which notice shall state (x) whether such Indemnifying Party agrees or disagrees that the Direct Claim asserted by the Indemnified Party is a valid claim under this Agreement, (y) whether such Indemnifying Party agrees or disagrees with respect to the amount of the Losses in such Direct Claim and (z) if such Indemnifying Party disagrees with either the validity of such claim or the amount of such Losses, the basis for such disagreement.
(g) If the Indemnifying Party does not give the Indemnified Party a notice pursuant to Section 11.4(f) disputing a Direct Claim within thirty (30) days after receipt of such Direct Claim (the “Indemnity Notice Period”), or if the Indemnifying Party gives notice that such Direct Claim is uncontested, then, subject to the limitations in this Article 11, the Indemnifying Party shall not promptly pay or cause to be entitled paid to control the Indemnified Party, by wire transfer of immediately available funds, the amount of such Losses specified in such Direct Claim.
(but h) If the notice from the Indemnifying Party admits that a portion of the Direct Claim is a valid claim under this Article 11 and the remaining portion of the Direct Claim is disputed, then, subject to the limitations in this Article 11, the Indemnifying Party shall promptly pay or cause to be paid to the Indemnified Party, by wire transfer of immediately available funds, the amount of such mutually agreed Losses, and in each case of this clause (h), the disputed portion of such Direct Claim shall be entitled to participate at their own expense resolved in accordance with Section 11.4(i).
(i) If the notice given by the Indemnifying Party as provided in Section 11.4(f) hereof disputes all or part of the claim or claims asserted in the defense of), and Direct Claim by the Indemnified Party shall be entitled to have sole control overor the amount of Losses thereof within the Indemnity Notice Period (a “Disputed Claim”), the defense or settlement of any Third Party Claim then, to the extent of the Third Party disputed portion of the Direct Claim, the Direct Claim seeks an order, injunction or other equitable relief against the shall be treated as a Disputed Claim. The Indemnified Party which, if successful, could materially interfere with and the business, operations, assets, condition Indemnifying Party shall make a reasonable good faith effort to resolve any Disputed Claim for a period of thirty (financial or otherwise30) or prospects of days following the Indemnified PartyIndemnity Notice Period.
Appears in 1 contract
Sources: Asset Purchase Agreement (Shenandoah Telecommunications Co/Va/)
Procedures. If The procedure for indemnification shall be as follows:
9.5.1 The party claiming indemnification (the “Claimant”) shall promptly give notice to the party from whom indemnification is claimed (the “Indemnifying Party”) of any claim, whether between the Parties (a “Direct Claim”) or brought by a third party, specifying (i) any Stockholder Event to the Claimant’s knowledge, the factual basis for such claim; and (ii) a good faith estimate of Breach occurs the amount of the claim, if such amount is capable of estimation. If the claim relates to an action, suit or is alleged and proceeding filed by a UAG Indemnified third party against Claimant (a “Third Party asserts that Claim”), such notice shall be given reasonably promptly by Claimant to the Stockholder have become obligated to a UAG Indemnified Indemnifying Party pursuant to SECTION 9.1, or if any Stockholder's after written notice of such Third Party Claim is begunreceived by Claimant; provided, made or instituted as a result however, that the failure of which the Stockholder may become obligated Claimant to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party give timely notice hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give written notice to not relieve the Indemnifying Party of its or his obligation obligations under this Article 9 unless, and only to provide indemnification hereunderthe extent that, provided that any failure to so notify the Indemnifying Party has been prejudiced thereby.
9.5.2 Following receipt of notice from the Claimant of a Direct Claim, the Indemnifying Party shall not relieve them from any liability that it have thirty (30) days to make such investigation of the claim as the Indemnifying Party deems necessary or he may have desirable. For the purposes of such investigation, the Claimant agrees to make available to the Indemnified Indemnifying Party under this ARTICLE 9and its authorized representative(s) the information relied upon by the Claimant to substantiate the claim. If the Claimant and the Indemnifying Party agree at or prior to the expiration of such notice relates 30-day period (or any mutually agreed upon extension thereof) to a Third the validity and amount of such claim, the Indemnifying Party Claimshall immediately pay to the Claimant the full amount of the claim, each subject to the terms and in accordance with the procedures set forth herein, including Section 9.4 and Section 9.6. If the Claimant and the Indemnifying PartyParty do not agree within such period (or any mutually agreed upon extension thereof), jointly and severally, agrees the Claimant may seek appropriate legal remedies.
9.5.3 With respect to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have as to which the rightClaimant is entitled to indemnification hereunder, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do soundertake the defense of, includingor opposition to, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days with counsel selected by such Indemnifying Party, subject to the Indemnifying Party’s notifying the Claimant, in writing promptly after receipt of the Claimant’s notice thereof of Claim, of its intention to assume such defense or opposition. The Claimant shall cooperate fully with the Indemnifying Party. If the Indemnifying Party elects to assume control of the defense of, or opposition to, any Third Party Claim, the Claimant shall have been given the right to participate in the defense of, or opposition to, such claim at its own expense; provided, however, if, in the reasonable opinion of counsel for the Claimant, there would be a conflict of interest if the Indemnifying Party’s counsel represented both the Indemnifying Party and the Claimant, the Indemnifying Party shall be deemed a waiver responsible for the reasonable fees and expenses of one counsel selected by the Claimant to participate in such defense or opposition.
9.5.4 In the event the Indemnifying Party of its (i) does not elect to assume control or their right to defend such otherwise participate in the defense of, or opposition to, any Third Party Claim. If the Indemnifying Party assumes Claim or (ii) is not entitled to assume control of the defense of the particular of, or opposition to, any such Third Party Claim, the Indemnifying Party shall notbe bound by the results obtained by the Claimant with respect to such claim; provided, in however, the Claimant shall not have the right to consent or otherwise agree to any monetary or non-monetary settlement or relief, including injunctive relief or other equitable remedies, without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, delayed or conditioned. In the event that the Indemnifying Party assumes control of the defense of such of, or opposition to, any Third Party Claim, consent the Claimant shall be bound by the results obtained by the Indemnifying Party with respect to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, claim; provided that the Indemnifying Party shall not enter into have the right to consent or otherwise agree to any non-monetary settlement of any Third Party Claim (except with or relief, including injunctive relief or other equitable remedies, without the prior written consent of such Indemnified Party) the Claimant, which does consent will not include as an unconditional term thereof the giving by the claimant be unreasonably withheld, delayed or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claimconditioned. Notwithstanding the foregoing, neither the Indemnifying Party nor the Claimant shall not be entitled to control (but shall be entitled to participate at their own expense in settle or compromise any such claim or demand unless the defense of)Claimant or the Indemnifying Party, respectively, is given a full and the Indemnified complete release of any and all Losses by all relevant parties relating thereto.
9.5.5 If a claim, whether a Direct Claim or a Third Party shall be entitled to have sole control overClaim, requires immediate action, the defense or settlement of any Third Party Claim Parties will work in good faith to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere reach a decision with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partyrespect thereto as expeditiously as possible.
Appears in 1 contract
Sources: Asset Purchase Agreement (Shenandoah Telecommunications Co/Va/)
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and a UAG In order for the Indemnified Party asserts that to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a third party (a “Third Party Claim”), the Stockholder have become obligated to a UAG Indemnified Party pursuant must notify the Indemnifying Party in writing of the Third Party Claim (a “Claim Notice”), which must be accompanied by a copy of the written notice of the Third Party Claimant asserting the Third Party Claim; but the failure to SECTION 9.1give such notification promptly (so long as a valid Claim Notice is given before the expiration of the applicable period) shall not affect the Indemnified Party’s right to indemnification except to the extent the Indemnifying Party demonstrates actual prejudice as a result of such failure. Thereafter, or if any Stockholder's the Indemnified Party shall deliver to the Indemnifying Party copies of all other notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim.
(b) If a Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as against an "Indemnified Party" , the Indemnifying Party shall be entitled to participate in the defense thereof and, if its so chooses, to assume the defense thereof at its sole cost and UAG and expense, with counsel selected by the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third . Should the Indemnifying Party Claim and any Stockholder Third Party Claim is sometimes referred so elect to as assume the defense of a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give written notice to the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have be liable to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such for any legal expenses incurred by the Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in connection with the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possiblethereof, except as provided below. If the Indemnifying Party fails timely to defendassumes such defense, contest or otherwise protect against such Third Party Claim, such the Indemnified Party shall have the right to do soparticipate in the defense thereof and to employ counsel, includingat its own expense, without limitation, separate from the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from counsel employed by the Indemnifying Party. Additionally, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver responsible for the reasonable fees and expenses of counsel incurred by the Indemnified Party as was reasonably necessary to respond timely to legal process for any period after the Claim Notice is given during which the Indemnifying Party of its or their right has not assumed the defense thereof, if and to defend the extent that the Indemnifying Party is responsible to indemnify for such Third Party Claim. If the Indemnifying Party assumes does not assume the defense of a Third Party Claim within twenty (20) days after the particular giving by the Indemnified Party to the Indemnifying Party of a valid Claim Notice with respect to a Third Party Claim, the Indemnifying Party shall notbe liable to the Indemnified Party for the reasonable fees and expenses of counsel employed by the Indemnified Party if and to the extent that the Indemnified Party is responsible to indemnify for such Third Party Claim. If the Indemnifying Party chooses to defend any Third Party Claim, the Indemnified Party shall reasonably cooperate 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 which are relevant to such Third Party Claim, consent and making employees available, at no cost, on a mutually convenient basis to entry provide additional information, an explanation of any judgment material provided and to act as a witness or enter into any settlement, except with respond to legal process.
(c) In the written consent of such Indemnified Party. In addition, event that the Indemnifying Party shall not enter into any settlement exercise its right to undertake control of the defense of any Third such legal proceedings, such Indemnifying Party Claim (except with may only compromise or settle such legal proceeding on behalf of and for the account of the Indemnified Party after it obtains the prior written consent of such the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing; provided, however, that if the Indemnifying Party shall not receive an offer of a settlement or compromise from the other parties in the applicable legal proceedings at a particular monetary amount, or obtain a commitment from such parties that they would accept a compromise or settlement at such monetary amount if offered, and such settlement or compromise requires only the payment of such amount, the granting of an appropriate release or similar accommodation, and no other relief, and there is (i) no finding or admission of any violation of any Laws or any violation of the rights of any Person and no effect on any other claims that may be entitled made against the Indemnified Party; and that (ii) settlement of such claim is not, in the good faith judgment of the Indemnified Party, likely to control (but establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party and the Indemnified Party refuses to consent thereto and elects to continue the legal proceedings, then the Losses of the Indemnified Party which are the subject of the applicable legal proceedings to which the settlement or compromise relates shall be entitled deemed to participate at their own expense be limited to that amount of Losses which the Indemnified Party would have had if such compromise or settlement had been effected. In the event that the Indemnifying Party does not exercise its option to assume control of any such action or proceeding, then the Indemnifying Party shall nevertheless be obliged to indemnify the Indemnified Party pursuant to the provisions hereof; and (iii) any claim for indemnification with respect to any matter not related to a Third Party Claim may be asserted by Indemnification Notice. The claim specified in the defense of), such notice shall be deemed valid and the Indemnified Party shall be entitled to have sole control overindemnification hereunder on account of such claim unless within twenty (20) Business Days of the Indemnifying Party’s receipt of the Indemnification Notice, the defense or settlement of any Third Indemnifying Party Claim gives notice to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party whichthat it disputes the validity of such claim.
(d) Any and all amounts due for indemnity hereunder shall be promptly paid, in lawful money of the United States of America.
(e) Upon notice to Seller specifying in reasonable detail the basis for such set-off, Purchaser may set off any amount to which it may be entitled under Article 6 against amounts otherwise payable under the Secured Subordinated Promissory Note; provided, however, if successfulSeller disputes any such Losses, could materially interfere Purchaser shall make any disputed payments into escrow as a condition to maintaining any such claim. The exercise of such right of set-off by Purchaser in good faith, whether or not ultimately determined to be justified, will not constitute an event of default under the Secured Subordinated Promissory Note so long as any disputed amounts are first paid into an escrow account maintained by an unaffiliated escrow agent reasonably acceptable to Seller. Neither the exercise of, nor the failure to exercise, such right of set-off will constitute an election of remedies or limit Purchaser in any manner in the enforcement of any other rights and remedies that may be available to it. Any interest earned on any amount held in escrow shall be paid pro rata in accordance with the business, operations, assets, condition (financial or otherwise) or prospects resolution of the Indemnified Partyapplicable dispute.
Appears in 1 contract
Sources: Asset Purchase Agreement (Consonus Technologies, Inc.)
Procedures. If (ia) In order for a party (the “Indemnified Party”) to be entitled to any Stockholder Event indemnification provided for under this Agreement in respect of, arising out of Breach occurs or is alleged and involving a UAG Loss or a claim or demand made by any Person against the Indemnified Party asserts that the Stockholder have become obligated to (a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," in each case as the context so requires”), such Indemnified Party shall give deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) with reasonable promptness after receipt by such Indemnified Party of written notice to of the Third Party Claim and shall provide the Indemnifying party with such information with respect thereto as the Indemnifying Party of its or his obligation may reasonably request. The failure to provide indemnification hereundersuch notice, provided that any failure to so notify however, shall not release the Indemnifying Party from any of its obligations under this Section 9 except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve them the Indemnifying Party from any other obligation or liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such than pursuant to this Section 9.
(b) If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any such and all Losses that may result from a Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have pursuant to the rightterms of this Agreement, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by unless the Indemnifying Party fails to notify such provide reasonable assurances to the Indemnified Party of its or their election financial capacity to defend any such Third Proceeding and provide indemnification with respect to such Proceeding), upon written notice to the Indemnified Party Claim within fifteen (15) days after of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall have been given not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and satisfactory to the Indemnified Party. The Indemnifying Party shall be deemed a waiver liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party of its has failed to assume the defense thereof or their does not have the right to defend assume the defense of said Third Party Claim pursuant to the terms hereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 9.4(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of the particular such Third Party Claim, the Indemnifying Indemnified Party shall not, have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, consent the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to entry the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any judgment or enter into any settlementThird Party Claim, except with the written consent of such Indemnified Party. In addition, (1) the Indemnifying Party shall not enter into admit any settlement of any liability with respect to, or settle, compromise or discharge, or offer to compromise, settle or discharge, such Third Party Claim (except with without the written consent of such Indemnified Party’s prior written Consent and (2) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party shall Consent to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend and that by its terms requires that the Indemnifying Party pay the full release from all amount of the liability in respect of connection therewith, that otherwise releases the Indemnified Party completely and with prejudice in connection with such Third Party ClaimClaim and that would not otherwise adversely affect the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in assume the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim (and, in addition to any other Losses, shall be liable for the extent fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks seeks, among other things, an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party, and the Indemnified Party whichshall have the sole and exclusive right to settle any such Third Party Claim.
(i) The indemnification required hereunder in respect of a Third Party Claim shall be made by prompt payment by the Indemnifying Party of the amount of actual Losses thereof, if successfulas and when bills are received by the Indemnifying Party or Losses incurred have been notified to the Indemnifying Party, could materially interfere together with interest on any amount not repaid as necessary to the businessIndemnified Party by the Indemnifying Party within five Business Days after receipt of notice therefor, operationsfrom the date such Losses have been notified to the Indemnifying Party, assets, condition at a rate of interest set forth in Section 2.2(j).
(financial c) The Indemnifying Party shall not be entitled to require that any action be made or otherwise) brought against any other Person before action is brought or prospects of a claim is made against it hereunder by the Indemnified Party.
Appears in 1 contract
Sources: Merger Agreement (Ilog Sa)
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that Any party seeking indemnification under Section 10.02 (the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and ") shall give prompt notice to the Stockholder are sometimes referred to as an party against whom indemnity is sought (the "Indemnifying Party," and ") of the assertion of any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as ; provided that no delay on the context so requires), such part of the Indemnified Party in notifying the Indemnifying Party shall give written notice to relieve the Indemnifying Party of its any liability or his obligation to provide indemnification hereunder, provided except to the extent that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to has been materially prejudiced thereby. The Indemnifying Party may, and at the request of the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claimshall, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against participate in the defense of any such Third Party Claim at his or its sole cost and own expense. Such Indemnified The Indemnifying Party shall have the right, but not by giving notice to the obligation, to participate at its own expense in Indemnified Party within ten (10) days of receipt of notice from the defense thereof by counsel Indemnified Party of such Indemnified Party's choice and shall in any event cooperate with and assist a Third Party Claim stating that the 51 Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against is responsible for such Third Party Claim, such Indemnified Party shall have the right to do soat its expense, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its against, negotiate, settle or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except otherwise deal with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) respect to which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, it is the Indemnifying Party shall not be entitled and to control (but shall be entitled to participate at their own expense in the defense of), and have the Indemnified Party shall be entitled represented by counsel, reasonably satisfactory to have sole control overthe Indemnified Party, selected by the defense or settlement Indemnifying Party; provided that the Indemnified Party may participate in any proceeding with counsel of its choice and at its expense; provided further that SVT and Buyer, at any time when they believe in good faith that any Third Party Claim with respect to which Seller or Parent is defending, is reasonably likely to have a material adverse effect on the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operationsBusiness, assets, affairs, condition (financial or otherwise) or prospects of Buyer or SVT or the Purchased Assets, or could adversely affect or detract from the value of the Purchased Assets or the Business, may assume the defense and settlement of such Third Party Claim in good faith, with counsel of its choice, and be fully indemnified therefore; and provided further that the Indemnifying Party may not enter into a settlement of any Third Party Claim without the consent of the Indemnified PartyParty unless such settlement requires no more than a monetary payment for which the Indemnified Party is fully indemnified.
(b) The first $1,900,000, in the aggregate, of Parent's and Seller's indemnification obligations pursuant to this Article X shall be paid in the form of immediately available U.S. denominated funds. If, however, any portion of the Earnout has not been paid to Parent, Buyer and Seller shall first offset the amount owed under this Article X by the amount of the unpaid Earnout. Thereafter, any further indemnification obligation of Seller or Parent shall be paid, as determined by SVT in its sole discretion, in the form of either (i) immediately available U.S. denominated funds or (ii) the return of the applicable number of shares of the SVT Stock, with the per share value determined by SVT's then-most recent financing; provided, however, that if SVT elects not to receive shares of the SVT Stock, it shall waive the restrictions on transfer of the shares of the SVT Stock contained in Section 5.08(a) to the extent reasonably necessary to permit Parent to sell such shares.
(c) If either Parent or Seller shall not have satisfied any liability hereunder at any time when Buyer and SVT become obligated to make any payments of the Earnout pursuant to Section 2.11, Buyer and SVT may satisfy the unpaid portion of such Claim by setting off such amount against the amount of the Earnout payment that would otherwise be due.
Appears in 1 contract
Sources: Asset Purchase Agreement (Conversion Services International Inc)
Procedures. If (ia) In order for a Buyer Indemnity or a Seller Indemnity (the “Indemnified Party”) to be entitled to any Stockholder Event indemnification provided for under this Agreement in respect of, arising out of Breach occurs or is alleged and involving a UAG Loss or a claim or demand made by any person against the Indemnified Party asserts that the Stockholder have become obligated to (a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," in each case as the context so requires”), such Indemnified Party shall give written deliver notice to the party against whom indemnity is sought (the “Indemnifying Party”) with reasonable promptness after receipt by such Indemnified Party of its or his obligation to written notice of the Third Party Claim and shall provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not relieve them release the Indemnifying Party from any liability that it or he may have of its obligations under this Article VIII except to the Indemnified extent that the Indemnifying Party under this ARTICLE 9. is materially prejudiced by such failure.
(b) If such notice relates the Indemnifying Party acknowledges in writing its obligation to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such indemnify the Indemnified Party against any such and all Losses that may result from a Third Party Claim that is exclusively for civil monetary damages at his or its sole cost and expense. Such Indemnified law pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party upon written notice to the extent reasonably possible. If Indemnified Party within 15 days of receipt of notice from the Indemnifying Indemnified Party fails timely to defend, contest or otherwise protect against of the commencement of such Third Party Claim, such to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim for equitable or injunctive relief or any claim that would impose criminal liability or damages, and the Indemnified Party shall have the right to do sodefend, including, without limitation, at the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from expense of the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of any such Third Party Claim. Failure 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 failed to notify such Indemnified assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof the time period and otherwise in accordance with the first sentence of this Section 8.4(b), the Indemnified Party shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their sole right to defend assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the particular Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall not, in without the defense prior written consent of such Third Party Claimthe Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment or enter into any settlement, except with the written consent of respect to such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim if such settlement, compromise or judgment (except with i) involves a finding or admission of wrongdoing by the written consent Indemnified Party or any of such Indemnified Partyits Representatives, (ii) which does not include as an unconditional term thereof the giving written release by the claimant or plaintiff of the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim, or (iii) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but any claim relating to Taxes of the Indemnified Party for any period ending after the Closing Date provided that, in the case of any Straddle Period for which a claim could result in an obligation of the Seller to indemnify for Taxes under this Agreement, the Buyer shall not be entitled to participate at their own expense in settle such claim without the defense ofprior written consent of the Seller (not to be unreasonably withheld), and the Indemnified Party shall not be entitled to have sole control oversettle, either administratively or after the commencement of litigation, any claim for Taxes which could adversely affect the liability of the Indemnified Party for Taxes for any period after the Closing Date, without the prior written consent of the Indemnified Party (not to be unreasonably withheld or delayed). If the Indemnified Party assumes the defense or settlement of any Third Party Claim, the Indemnified Party shall not, without the prior written consent of the Indemnifying Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or judgment (i) involves a finding or admission of wrongdoing by the Indemnifying Party or any of its Representatives, (ii) does not include an unconditional written release by the claimant or plaintiff of the Indemnifying Party from all liability in respect of such Third Party Claim, or (iii) imposes equitable remedies or any obligation, unless the Indemnified Party agrees in writing to release the Indemnifying Party from all liability and obligation with respect thereto and waive its right for indemnification, compensation or reimbursement pursuant to Article VIII in connection thereto.
(c) In the event that any Indemnified Party should have a claim against any Indemnifying Party hereunder (whether or not involves a Third Party Claim), the Indemnified Party shall deliver a Claim Notice (as defined in the Escrow Agreement) with respect to such claim with reasonable promptness to the Indemnifying Party in accordance with the procedures set forth in the Escrow Agreement (to the extent there are any funds available in the Indemnity Escrow Fund) or Schedule D of this Agreement (to the extent there are no available funds in the Indemnity Escrow Fund and the nature of the claim is such that is not subject to the limitations set forth in Section 8.5(a) and is not limited to the funds available in the Indemnity Escrow Fund). The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent that the Indemnifying Party is materially prejudiced by such failure.
(d) If either the Seller or the Buyer fails to indemnify any Buyer Indemnitee or any Seller Indemnitee, as applicable, for any Losses to which such Buyer Indemnitee or Seller Indemnitee in entitled pursuant to this Article VIII (following compliance with the procedures set forth herein), then such Losses shall accrue interest from the date such Losses are due pursuant to the terms of this Article VIII, at the rate of interest from time to time announced publicly by The Wall Street Journal as its prime rate, calculated on the basis of a year of 365 days and the number of days elapsed.
(e) Notwithstanding the provisions of Section 10.10, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim seeks an order, injunction or other equitable relief is brought against the any Indemnified Party which, if successful, could materially interfere for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partymatters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere.
Appears in 1 contract
Procedures. (a) If any Person who or which is entitled to seek indemnification under Section 8.2 or Section 8.3 (ian "INDEMNIFIED PARTY") receives notice of the assertion or commencement of any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), against such Indemnified Party shall give written notice with respect to which the Indemnifying Party of its Person against whom or his obligation which such indemnification is being sought (an "INDEMNIFYING PARTY") is obligated to provide indemnification hereunderunder this Agreement, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If will give such Indemnifying Party reasonably prompt written notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the rightthereof, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against not later than 20 days after receipt of such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result written notice of such Third Party Claim. Failure Such notice by the Indemnified Party will describe the Third Party Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of the Damages that has been or may be sustained by the Indemnified Party. The Indemnifying Party will have the right to participate in, or, by giving written notice to the Indemnified Party, to assume, the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (reasonably satisfactory to the Indemnified Party), and the Indemnified Party will cooperate in good faith in such defense.
(b) If, within 20 days after giving notice of a Third Party Claim to an Indemnifying Party pursuant to Section 8.4(a), an Indemnified Party receives written notice from the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to that the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right has elected to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in assume the defense of such Third Party Claim, consent to entry Claim as provided in the last sentence of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In additionSection 8.4(a), the Indemnifying Party shall will not be liable for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; PROVIDED, HOWEVER, that if the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim within 20 days after receiving written notice from the Indemnified Party that the Indemnified Party reasonably believes the Indemnifying Party has failed to take such steps or if the Indemnifying Party has not undertaken fully to indemnify the Indemnified Party in respect of all damages relating to the matter, the Indemnified Party may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs and expenses paid or incurred in connection therewith. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim (except with which would lead to liability or create any financial or other obligation on the written consent part of such the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, or which provides for injunctive or other non-monetary relief applicable to the Indemnified Party) which , or, as to matters other than Tax Matters, does not include as an unconditional term thereof the giving by the claimant release of all Indemnified Parties. If a firm offer is made to settle a Third Party Claim without leading to liability or the plaintiff creation of a financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoingoffer, the Indemnifying Party shall not be entitled will give written notice to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control overthat effect. If the Indemnified Party fails to consent to such firm offer within ten days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim will not exceed the amount of such settlement offer. The Indemnified Party will provide the Indemnifying Party with reasonable access during normal business hours to books, records, and employees of the Indemnified Party necessary in connection with the Indemnifying Party's defense or settlement of any Third Party Claim to which is the extent the subject of a claim for indemnification by an Indemnified Party hereunder.
(c) Any claim by an Indemnified Party on account of Damages which does not result from a Third Party Claim seeks an order(a "DIRECT CLAIM") will be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, injunction or other equitable relief against but in any event not later than 20 days after the Indemnified Party whichbecomes aware of such Direct Claim. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if successfulreasonably practicable, could materially interfere with the business, operations, assets, condition (financial of Damages that has been or otherwise) or prospects of may be sustained by the Indemnified Party. The Indemnifying Party will have a period of ten days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such ten day period, the Indemnifying Party will be deemed to have rejected such claim, in which event the Indemnified Party will be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.
(d) A failure to give timely notice or to include any specified information in any notice as provided in Section 8.4(a), 8.4(b) or 8.4
Appears in 1 contract
Sources: Redemption and Merger Agreement (General Automation Inc/Il)
Procedures. If (ie) In order for a party (the “Indemnified Party”) to be entitled to any Stockholder Event indemnification provided for under this Agreement in respect of, arising out of Breach occurs or is alleged and involving a UAG Loss or a claim or demand made by any person against the Indemnified Party asserts that the Stockholder have become obligated to (a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," in each case as the context so requires”), such Indemnified Party shall give deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt of written notice to of the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each describing in reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount or method of computation of the amount of such claim (if known) and such other information with respect thereto as the Indemnifying PartyParty may reasonably request. The failure to provide such notice, jointly and severallyhowever, agrees shall not release the Indemnifying Party from any of its obligations under this Article IV except to defend, contest or otherwise protect the extent that the Indemnifying Party is materially prejudiced by such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified failure.
(f) The Indemnifying Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party upon written notice to the extent reasonably possible. If Indemnified Party within thirty (30) days of receipt of notice from the Indemnifying Indemnified Party fails timely to defend, contest or otherwise protect against of the commencement of such Third Party Claim, such Indemnified Party shall have to assume the right to do so, including, without limitation, defense thereof at the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from expense of the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure with counsel selected by the Indemnifying Party unless (i) the Indemnifying Party is also a named party to notify such Third Party claim and legal counsel to the Indemnified Party determines in good faith that joint representations would be inappropriate due to an ethical conflict or a conflict of interest or (ii) the Indemnifying Party failed to provide reasonable assurance to the Indemnified Party of its or their election financial capacity to competently defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given and provide indemnification with respect to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular such Third Party Claim, the Indemnifying Indemnified Party shall not, have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled reasonably cooperate with the Indemnifying Party in such defense and make available to have sole the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control overrelating thereto as is reasonably required by the Indemnifying Party. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the defense Indemnified Party shall not admit any liability with respect to, or settlement of any settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent, (which consent shall not be unreasonably withheld).
(g) In the event an Indemnified Party should have a claim against the Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party, the Indemnified Party shall deliver notice of such claim promptly to the Indemnifying Party, describing in reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount or method of computation of the amount of such claim (if known) and such other information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article IV except to the extent that the Third Indemnifying Party Claim seeks an order, injunction or other equitable relief against the is prejudiced by such failure. The Indemnified Party whichshall provide reasonable access to personnel and to information, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partyrecords and documents relating to such matters.
Appears in 1 contract
Sources: Minority Stock Purchase Agreement (Thomas & Betts Corp)
Procedures. (a) If any Person who or which is entitled to seek indemnification under Section 6.2 or Section 6.3 (ian "INDEMNIFIED PARTY") receives notice of the assertion or commencement of any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), against such Indemnified Party shall give written notice with respect to which the Indemnifying Party of its Person against whom or his obligation which such indemnification is being sought (an "INDEMNIFYING PARTY") is obligated to provide indemnification hereunderunder this Agreement, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If will give such Indemnifying Party reasonably prompt written notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the rightthereof, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against not later than 20 days after receipt of such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result written notice of such Third Party Claim. Failure Such notice by the Indemnified Party will describe the Third Party Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of the Damages that has been or may be sustained by the Indemnified Party. The Indemnifying Party will have the right to participate in, or, by giving written notice to the Indemnified Party, to assume, the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (reasonably satisfactory to the Indemnified Party), and the Indemnified Party will cooperate in good faith in such defense.
(b) If, within ten days after giving notice of a Third Party Claim to an Indemnifying Party pursuant to Section 6.4(a), an Indemnified Party receives written notice from the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to that the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right has elected to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in assume the defense of such Third Party Claim, consent to entry Claim as provided in the last sentence of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In additionSection 6.4(a), the Indemnifying Party shall will not be liable for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; PROVIDED, HOWEVER, that if the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten days after receiving written notice from the Indemnified Party that the Indemnified Party reasonably believes the Indemnifying Party has failed to take such steps or if the Indemnifying Party has not undertaken fully to indemnify the Indemnified Party in respect of all damages relating to the matter, the Indemnified Party may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs and expenses paid or incurred in connection therewith. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim (except with which would lead to liability or create any financial or other obligation on the written consent part of such the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, or which provides for injunctive or other non-monetary relief applicable to the Indemnified Party) which , or, as to matters other than Tax Matters, does not include as an unconditional term thereof the giving by the claimant release of all Indemnified Parties. If a firm offer is made to settle a Third Party Claim without leading to liability or the plaintiff creation of a financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoingoffer, the Indemnifying Party shall not be entitled will give written notice to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control overthat effect. If the Indemnified Party fails to consent to such firm offer within ten days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim will not exceed the amount of such settlement offer. The Indemnified Party will provide the Indemnifying Party with reasonable access during normal business hours to books, records, and employees of the Indemnified Party necessary in connection with the Indemnifying Party's defense or settlement of any Third Party Claim to which is the extent the subject of a claim for indemnification by an Indemnified Party hereunder.
(c) Any claim by an Indemnified Party on account of Damages which does not result from a Third Party Claim seeks an order(a "DIRECT CLAIM") will be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, injunction or other equitable relief against but in any event not later than 20 days after the Indemnified Party whichbecomes aware of such Direct Claim. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if successfulreasonably practicable, could materially interfere with the business, operations, assets, condition (financial of Damages that has been or otherwise) or prospects of may be sustained by the Indemnified Party. The Indemnifying Party will have a period of ten days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such ten day period, the Indemnifying Party will be deemed to have rejected such claim, in which event the Indemnified Party will be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.
(d) A failure to give timely notice or to include any specified information in any notice as provided in Section 6.4(a), 6.4(b) or 6.4
Appears in 1 contract
Procedures. If ¤ Each Person seeking indemnification under this Article 11 (ithe “Indemnified Party”) shall give prompt notice to the Person from whom indemnification is sought (the “Indemnifying Party”) of the assertion of any Stockholder Event claim or the commencement of Breach occurs or is alleged and a UAG any Action by any third party (“Third Party Claim”); provided that the failure of the Indemnified Party asserts to give notice as provided in this Section 11.03(a) shall not relieve any Indemnifying Party of its obligations under Section 11.02, except to the extent that such failure adversely prejudices the Stockholder have become obligated rights of any such Indemnifying Party. Such notice shall set forth in reasonable detail such claim and the basis for indemnification (taking into account the information then available to a UAG the Indemnified Party). Thereafter, the Indemnified Party pursuant shall deliver to SECTION 9.1the Indemnifying Party, or if as promptly as reasonably practicable following the Indemnified Party’s receipt thereof, copies of all written notices and documents (including any Stockholder's Third Party Claim is begun, made or instituted as a result of which court papers) received by the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated relating to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give written notice to provide the Indemnifying Party of its or his obligation with such other information with respect to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expensereasonably requested by the Indemnifying Party. Such Indemnified The Indemnifying Party shall have the right, but not the obligationat its sole option and expense, to be represented by counsel of its choice and, subject to the limitations set forth in this Section 11.03, to assume control of, and defend against, negotiate, settle (subject to clause (b)) or otherwise deal with such Third Party Claim, but the Indemnified Party may nonetheless participate in the defense of such Third Party Claim with its own counsel and at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possibleexpense. If the Indemnifying Party fails timely elects not to defenddefend against, contest negotiate, settle or otherwise protect against such deal with any Third Party ClaimClaim or resolve any Environmental Matter pursuant to this Article 11, such then the Indemnified Party shall have the right may defend against, negotiate, settle (subject to do so, including, without limitation, the right to make any compromise clause (b)) or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any otherwise deal with such Third Party Claim within fifteen (15) days after notice thereof shall have been given to or Environmental Matter at the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party ClaimParty’s expense. If the Indemnifying Party assumes shall, assume the defense of the particular any Third Party ClaimClaim or the resolution of any Environmental Matter pursuant to this Article 11, then the Indemnifying Indemnified Party shall notmay participate, at his or its own expense, in the defense of such Third Party ClaimClaim or Environmental Matter, consent to entry of any judgment or enter into any settlement, except with the written consent of as applicable; provided that such Indemnified Party. In addition, Party shall be entitled to participate in any such defense with separate counsel at the expense of the Indemnifying Party shall not enter into any settlement of any Third Party Claim if (except with the written consent of such Indemnified Partyi) which does not include as an unconditional term thereof the giving requested by the claimant Indemnifying Party to participate or (ii) in the plaintiff reasonable opinion of counsel to such the Indemnifying Party, a material conflict exists between the Indemnified Party a full release from all liability in respect of and the Indemnifying Party that would make such Third Party Claim. Notwithstanding the foregoingseparate representation advisable; provided, further that the Indemnifying Party shall not be entitled required to control pay for more than one such counsel (but shall be entitled in addition to participate at their own expense local counsel) for all Indemnified Parties in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of connection with any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified PartyEnvironmental Matter.
Appears in 1 contract
Sources: Asset and Stock Purchase Agreement (Regal Beloit Corp)
Procedures. If (ia) In order for a party (the “Indemnified Party”) to be entitled to any Stockholder Event indemnification provided for under this Agreement in respect of, arising out of Breach occurs or is alleged and involving a UAG Loss or a claim or demand made by any person against the Indemnified Party asserts that the Stockholder have become obligated to (a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," in each case as the context so requires”), such Indemnified Party shall give deliver notice thereof to the Securityholder Representative, on behalf of the Securityholders, or to the Parent, as applicable (the Securityholders collectively or Parent, as applicable, the “Indemnifying Party”) with reasonable promptness after receipt by such Indemnified Party of written notice of the Third Party Claim and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VII except to the extent that the Indemnifying Party is materially prejudiced by such failure. For the avoidance of doubt, in each case where the Indemnified Party or the Indemnifying Party is, collectively, the Securityholders, all references to such Indemnified Party or Indemnifying Party, as the case may be, in this Section 7.4 shall be deemed (except for provisions relating to an obligation to make or a right to receive any payments) to refer to the Securityholder Representative acting on behalf of such Indemnified Party or Indemnifying Party, as applicable.
(b) If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any and all Losses (subject to the limitations set forth in this Agreement) that may result from a Third Party Claim that is exclusively for civil monetary damages at law pursuant to the terms of this Agreement, the Indemnifying Party shall have the right (except with respect to any Third Party Claim involving a customer or potential customer of the Indemnified Party or any of its Affiliates), upon written notice to the Indemnifying Indemnified Party within 30 days of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them receipt of notice from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have of the right, but not the obligation, to participate at its own expense in the defense thereof by counsel commencement of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have to assume the right to do so, including, without limitation, the right to make any compromise or settlement defense thereof, and such Indemnified Party shall be entitled to recover assert any claims, including counter claims, cross-claims and third-party claims, in connection therewith (and any award with respect thereto will reduce the entire Cost thereof from Loss on a dollar for dollar basis), at the expense of the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure with counsel selected by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given and reasonably satisfactory to the Indemnifying Party shall be deemed a waiver by Indemnified Party. In the Indemnifying Party of its or their right to defend such Third Party Claim. If event that the Indemnifying Party assumes the defense of the particular any Third Party Claim, it shall have the Indemnifying Party shall notright to take such action as it deems necessary to avoid, in the defense of dispute, defend, appeal or make claims pertaining to any such Third Party Claim, consent to entry Claim in the name and on behalf of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in assume the defense of)of any Third Party Claim for equitable or injunctive relief or any claim that would impose criminal liability or damages, and the Indemnified Party shall be entitled have the right to have sole control overdefend any such Third Party Claim at the expense of the Indemnifying Party to the extent such Third Party Claim gives rise to indemnifiable Losses. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 7.4(b), the Indemnified Party shall have the sole right to assume the defense or settlement of and to settle such Third Party Claim and, in any such case, shall keep the Securityholder Representative reasonably informed of all material developments relating to such Third Party Claim. Notwithstanding anything to the contrary in this Agreement, in the event that the defense of any Third Party Claim is conducted by the Indemnified Party in accordance with this Section 7.4(b), the Indemnified Party shall not consent to the extent entry of any judgment or enter into any settlement or compromise of such Third Party Claim without the prior written consent of the Securityholder Representative (such consent not to be unreasonably withheld, conditioned or delayed). If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim seeks an order, injunction or other equitable relief against (including any impleaded parties) include both the Indemnified Party whichand the Indemnifying Party, if successfuland the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, could materially interfere the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the businessIndemnifying Party in such defense and make available to the Indemnifying Party all witnesses, operationspertinent records, assetsmaterials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, condition (financial or otherwise) or prospects the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or judgment (A) involves a finding or admission of wrongdoing, (B) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liability in respect of such Third Party Claim or (C) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be fully indemnified hereunder.
(c) Subject to the limitations set forth herein, the indemnification required hereunder in respect of a Third Party Claim shall be made by prompt payment by the Escrow Agent (to the extent of any amounts then held in the Indemnity Escrow Fund if applicable) or the Indemnifying Party (to the extent of any amounts not then held in the Indemnity Escrow Fund if applicable) of the amount of Losses in connection therewith to the extent such Losses have been determined to be indemnifiable Losses hereunder pursuant to the terms hereof.
(d) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim with reasonable promptness to the Indemnifying Party. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VII except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VII. If the Indemnifying Party does not notify the Indemnified Party within 30 days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand (which may be paid out of the Indemnity Escrow Fund to the extent of any amounts then held in the Indemnity Escrow Fund, if applicable). If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount (which may be paid out of the Indemnity Escrow Fund to the extent of any amounts then held in the Indemnity Escrow Fund, if applicable) promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
Appears in 1 contract
Sources: Merger Agreement (NICE Ltd.)
Procedures. If (ia) any Stockholder Event of Breach occurs or A party making a claim for indemnity under Section 8.02 is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes hereinafter referred to as an "“Indemnified Party" and UAG ” and the Stockholder are sometimes party against whom such claim is asserted is hereinafter referred to as an "the “Indemnifying Party," .” All claims by any Indemnified Party under Section 8.02 hereof shall be asserted and resolved in accordance with the following provisions. If any UAG Third claim or demand for which an Indemnifying Party Claim and any Stockholder Third would be liable to an Indemnified Party Claim is sometimes referred asserted against or sought to as be collected from such Indemnified Party by a "third party (each a “Third Party Claim," in each case as the context so requires”), such said Indemnified Party shall with reasonable promptness notify in writing the Indemnifying Party of such claim or demand stating with reasonable specificity the circumstances of the Indemnified Party’s claim for indemnification; provided, however, that any failure to give written such notice will not waive any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually prejudiced or to the extent that any applicable period set forth in Section 8.01 has expired without such notice being given. After receipt by the Indemnifying Party of such notice, then upon reasonable notice from the Indemnifying Party to the Indemnified Party, or the request of the Indemnified Party, the Indemnifying Party shall defend, manage and conduct any proceedings, negotiations or communications involving any claimant whose claim is the subject of the Indemnified Party’s notice to the Indemnifying Party as set forth above, and shall take all actions necessary, including the posting of its such bond or his obligation other security as may be required by any Governmental Authority, so as to provide indemnification hereunderenable the claim to be defended against or resolved without expense or other action by the Indemnified Party. Upon request of the Indemnifying Party, provided the Indemnified Party shall, to the extent it may legally do so and to the extent that any failure to so notify it is compensated in advance by the Indemnifying Party shall not relieve them from for any liability that it or he costs and expenses thereby incurred;
(i) take such action as the Indemnifying Party may have to the Indemnified Party under this ARTICLE 9. If reasonably request in connection with such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist action,
(ii) allow the Indemnifying Party to dispute such action in the extent reasonably possible. If name of the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have and to conduct a defense to such action on behalf of the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid or
(or of which such Indemnified Party has become obligated to payiii) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given render to the Indemnifying Party shall be deemed a waiver by all such assistance as the Indemnifying Party of its or their right may reasonably request in connection with such dispute and defense.
(b) Notwithstanding anything to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, contrary in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified PartySection 8.03(a) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoingabove, the Indemnifying Party shall not be entitled entitled, or shall lose its right, as applicable, to control contest, defend, litigate and settle a Third Party Claim if (but shall be entitled i) there exists or is reasonably likely to participate at their own expense exist a conflict of interest that would make it inappropriate in the defense of), reasonable judgment of the Indemnified Party for the same counsel to represent both the Indemnifying Party and the Indemnified Party, (ii) the Indemnifying Party shall be entitled fail to have sole control overdiligently contest the Third Party Claim, the defense or settlement of any (iii) such Third Party Claim involves remedies or disputes other than claims for monetary damages, or (iv) such Third Party Claim or the resolution thereof is reasonably likely to impair ongoing business relationships with any Customer, any Governmental Authority, or any other Person doing business with the Indemnified Party or any of its Affiliates.
(c) Subject to the limitations set forth in Section 8.02(a), the Company and the Stockholder specifically agree that any claims due and owing for indemnification by the Parent or VPRW against the Stockholder and the Company (or any of them) shall be first satisfied by deducting and otherwise offsetting such claims against the Escrow Amount; and to the extent that there remain unsatisfied indemnification claims after the Third Party Claim seeks an orderdeductions and set-offs described above, injunction or other equitable relief the Parent and VPRW shall have full recourse against the Indemnified Party whichStockholder and the Company (including their assets of whatsoever kind or nature) for payment of such indemnification claims. Notwithstanding anything in this Agreement to the contrary, if successful, could materially interfere the Stockholder and the Company expressly agree that VPRW or the Parent may in good f▇▇▇▇ ▇▇▇▇▇▇ or compromise any individual claim for indemnity they make hereunder provided that the settlement or compromise does not (i) result in an adverse financial consequence to the Company or the Stockholder or (ii) impose any injunctive relief with respect to the business, operations, assets, condition (financial Company or otherwise) or prospects of the Indemnified PartyStockholder.
Appears in 1 contract
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and In order for a UAG Buyer Indemnified Party asserts that the Stockholder have become obligated to a UAG or Seller Indemnified Party pursuant (the “Indemnified Party”) to SECTION 9.1be entitled to any indemnification provided for under this Agreement in respect of, arising out of or if involving a Loss or a claim or demand made by any Stockholder's Third Party Claim is begun, made or instituted as a result of which Person against the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third “Third-Party Claim," in each case as the context so requires”), such Indemnified Party shall give deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third-Party Claim, describing in reasonable detail the facts giving rise to any claim for indemnification hereunder and the basis for indemnification (including the applicable provision of this Agreement alleged to have been breached and under which indemnification is being sought), an estimate in reasonable detail of the Losses incurred in connection therewith and (if applicable and if known), the method of computation of such amount and such other information with respect thereto as the Indemnifying Party of its or his obligation may reasonably request, to provide indemnification hereunderthe extent available; provided, provided however, that any the failure to so notify the Indemnifying Party shall not relieve them the Indemnifying Party from any liability that it or he may have Liability under this Agreement with respect to such claim only if, and only to the Indemnified extent that, such failure to notify the Indemnifying Party under this ARTICLE 9. If results in (i) the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such notice relates claim or (ii) material prejudice to a Third the Indemnifying Party Claim, each with respect to such claim.
(b) The Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not upon written notice to the obligationIndemnified Party within sixty (60) days of receipt of notice from the Indemnified Party of the commencement of such Third-Party Claim, to participate at its own expense in assume the defense thereof by counsel at the expense of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If with counsel selected by the Indemnifying Party fails timely and reasonably satisfactory to defendthe Indemnified Party, contest or otherwise protect against such Third Party Claimprovided, such Indemnified that the Indemnifying Party shall not have the right to do soassume control of such defense if the claim over which the Indemnifying Party seeks to assume control (i) involves a claim which would be materially detrimental to or materially injure the Indemnified Party’s reputation, includingemployee, without limitationcustomer, payor or other material business relations, (ii) primarily seeks non-monetary relief (except if the right only non-monetary relief sought is a declaratory judgment), (iii) involves criminal allegations against the Indemnified Party, (iv) is one in which the Indemnifying Party is also a party and joint representation would be inappropriate due to make any compromise conflicts of interest or settlement thereof, and such there may be legal defenses available to the Indemnified Party shall be entitled which are different from or additional to recover the entire Cost thereof from those available to the Indemnifying Party, including(v) involves a claim which, without limitationupon petition by the Indemnified Party, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by appropriate court rules that the Indemnifying Party failed or is failing to notify vigorously prosecute or defend, (vi) such Indemnified Party claim is by a Governmental Authority (other than if such claim relates to Taxes or the Other Businesses) or (vii) it is reasonably likely that damages will be awarded in excess of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party ClaimParty’s cap on liability for Losses arising in connection therewith. If the Indemnifying Party assumes the defense of the particular Third such Third-Party Claim, the Indemnifying Indemnified Party shall not, have the right to employ separate counsel and to participate in the defense thereof so long as such participation does not interfere with the Indemnifying Party’s defense thereof, but the fees and expenses of such Third counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third-Party Claim, consent the Indemnified Party shall reasonably cooperate with the Indemnifying Party in such defense and make available to entry the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party and at the sole cost of the Indemnifying Party. Whether or not the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnified Party shall not admit any judgment liability with respect to, or enter into any settlementsettle, except with compromise or discharge, or offer to settle, compromise or discharge, such Third-Party Claim without the Indemnifying Party’s prior written consent.
(c) If the Indemnifying Party is entitled to, and does assume the defense of a Third-Party Claim, no settlement or compromise thereof may be effected by the Indemnifying Party without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), provided, however, that such consent shall not be required if (i) the settlement agreement contains a complete and unconditional general release by the Third Party asserting the claim to all Indemnified Parties affected by the claim without any obligation on the part of any Indemnified Party (other than an obligation to pay amounts being borne entirely by the Indemnifying Party. In addition) and (ii) the settlement agreement provides, as the sole relief, monetary damages that are paid in full by the Indemnifying Party shall and does not enter into contain any settlement sanction or restriction upon the conduct or operations of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving business by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect or any of such Third Party Claimits Affiliates. Notwithstanding the foregoingforegoing and anything to the contrary herein, in the event that the Indemnifying Party shall not be entitled provides prior written notice to control (but shall be entitled the Indemnified Party of any settlement or compromise of, or offer to participate at their own expense in the defense of)settle or compromise, any Third-Party Claim and the Indemnified Party withholds its consent to such settlement or compromise then, in the event the Indemnifying Party is determined to be liable for indemnification hereunder, in no event shall the Indemnifying Party be entitled liable for indemnification in amount greater than the monetary amount contained in such settlement or compromise of, or offer to settle or compromise, any Third-Party Claim, plus any reasonable costs of defense as provided herein.
(d) In the event any Indemnified Party should have sole control overa claim against any Indemnifying Party hereunder that does not involve a Third-Party Claim being asserted against or sought to be collected from such Indemnified Party, the defense Indemnified Party shall deliver notice of such claim promptly to the Indemnifying Party, describing in reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount or settlement method of computation of the amount of such claim (if known) and such other information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any Third Party Claim of its obligations under this Article VIII except to the extent that the Third Indemnifying Party Claim seeks an order, injunction or other equitable relief against is prejudiced by such failure. The Indemnified Party shall reasonably cooperate and assist the Indemnifying Party in determining the validity of any claim for indemnity by the Indemnified Party whichand in otherwise resolving such matters, if successful, could materially interfere with at the business, operations, assets, condition (financial or otherwise) or prospects sole cost of the Indemnified Indemnifying Party. Such assistance and cooperation shall include providing reasonable access to and copies of information, records and documents relating to such matters, furnishing employees to assist in the investigation, defense and resolution of such matters and providing legal and business assistance with respect to such matters.
Appears in 1 contract
Procedures. If Whenever any claim shall arise for indemnification hereunder, the party making the claim under this ARTICLE XI (ithe “Indemnified Party”) shall promptly provide written notice of such claim to the party against whom such claim is asserted under this ARTICLE XI (the “Indemnifying Party”); provided, however, that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any Stockholder Event liability or obligation that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of Breach occurs or such claim is alleged and a UAG prejudiced by the Indemnified Party’s failure to give such notice. Such notice by the Indemnified Party asserts shall: (a) describe the claim in reasonable detail; (b) include copies of all material written evidence thereof; and (c) indicate the estimated amount, if known and reasonably practicable, of the Loss that has been or may be sustained by the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and . In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any Action by a Person who is not a party to this Agreement, the Stockholder are sometimes referred to as an "Indemnifying Party," , at its sole cost and any UAG Third Party Claim expense and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give upon written notice to the Indemnifying Indemnified Party within thirty (30) days of its or his obligation to provide indemnification hereunderreceipt of the Indemnified Party’s request for indemnification, provided that may assume the defense of any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have such Action with counsel reasonably satisfactory to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in assume the defense of), (and the Indemnified Party shall be entitled to have sole control over, over the defense and the Indemnifying Party shall be responsible for any reasonable attorneys’ fees or settlement other reasonable expenses incurred by the Indemnified Party regarding its participation in the defense) of any Third Party Claim to an Action if: (i) such Action involves criminal allegations against the extent the Third Party Claim seeks an order, injunction Indemnified Party; (ii) such Action demands injunctive or other equitable relief against the Indemnified Party; (iii) the Indemnified Party whichreasonably determines, if successfulafter consultation with its outside legal counsel, could materially interfere that a conflict of interest exists such that it would be inappropriate for a single counsel to represent both the Indemnifying Party and the Indemnified Party in connection with such Action under applicable standards of legal ethics; or (iv) such Action involves an amount equal to more than twice the amount that the Indemnifying Party would be responsible for indemnity hereunder; provided, however, that the Indemnified Party shall not, without the written consent of the Indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed), (A) settle or compromise any third-party Action or (B) permit a default or consent to entry of any judgment, in each case, unless the claimant and such party provide to such other party an unqualified release from all liability in respect of the third-party Action. If the Indemnifying Party controls the defense of an Action, the Indemnified Party shall be entitled to participate in the defense of any such Action, with its counsel and at its own cost and expense, subject to the Indemnifying Party’s right to control the defense thereof. If the Indemnifying Party does not assume the defense of any such Action, the Indemnified Party may, but shall not be obligated to, defend against such Action in such manner as it may deem appropriate, including settling such Action, after giving notice of it to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate and no action taken by the Indemnified Party in accordance with such defense and settlement shall relieve the Indemnifying Party of its indemnification obligations herein provided with respect to any Losses resulting therefrom. The Seller Representative (on behalf of the Sellers) and Purchaser shall cooperate with each other in all reasonable respects in connection with the businessdefense of any third-party Action, operationsincluding: (i) making available records relating to such claim; and (ii) furnishing, assetswithout expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, condition management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such claim. The Indemnifying Party shall not consent to the entry of a judgment or settle any Action without the Indemnified Party’s prior written consent (financial which consent shall not be unreasonably withheld, conditioned or otherwisedelayed); provided, however, that the Indemnifying Party may settle any Action without the Indemnified Party’s prior written consent that (i) only involves the payment of monetary damages that are paid in full by the Indemnifying Party and does not include any requirement that the Indemnified Party take or prospects refrain from taking any actions other than compliance with any nondisclosure obligations related to the terms of such settlement contained in the settlement agreement, (ii) provides, in customary form, for the unconditional release of the Indemnified Party from all liabilities and obligations in connection with such Action, (iii) does not involve any statement, finding or admission of any fault of, breach of contract by, or violation of Law by, the Indemnified Party; (iv) includes a reasonable confidentiality obligation by the third party claimant of the terms of the settlement in any settlement agreement; and (v) the Indemnified Party is an express third party beneficiary of the settlement agreement, entitled to enforce such settlement agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Fox Factory Holding Corp)
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and a UAG An Indemnified Party asserts (as defined in Section 17.3(b)) shall promptly give the Indemnifying Party (as defined in Section 17.3(b) notice of any matter (other than any third party claim, suit or action) upon determining that such matter has or may give rise to any right of indemnification pursuant to Article XVII hereof; provided that the Stockholder have become obligated to a UAG failure by the Indemnified Party pursuant to SECTION 9.1, or if give prompt notice of any Stockholder's Third Party Claim is begun, made or instituted as a result such matter shall not limit the liability of which the Stockholder may become obligated to a UAG Indemnified Indemnifying Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder except that this provision shall not be deemed to limit the Indemnifying Party’s rights to recover from the Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant the extent of any loss, cost or expense which it can establish resulted directly from such failure to SECTION 9.2give prompt notice.
(b) In case any third party claim is made, or if any UAG Third third party suit or action is commenced, against a Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "the “Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires”), such the Indemnified Party shall promptly give the other Party (the “Indemnifying Party”) notice thereof upon making a determination that such third party claim, suit or action may give rise to a right of indemnification under Article XVII hereof and the Indemnifying Party shall be entitled to participate in the defense thereof and, with prior written notice to the Indemnified Party given not later than twenty (20) days after the delivery of the applicable notice from the Indemnified Party, to assume, at the Indemnifying Party’s expense, the defense thereof, with counsel reasonably satisfactory to such Indemnified Party. After notice from the Indemnifying Party to such Indemnified Party of its or his obligation election so to provide indemnification hereunderassume the defense thereof, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have be liable to the such Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest Section for any attorneys’ fees or otherwise protect other expenses subsequently incurred by such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in connection with the defense thereof by counsel thereof, other than reasonable costs of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such investigation.
(c) The Indemnified Party shall have the right to do soemploy its own counsel if the Indemnifying Party elects to assume such defense, including, without limitation, but the right to make any compromise or settlement thereof, fees and expenses of such Indemnified Party counsel shall be entitled to recover at the entire Cost thereof from Indemnified Party’s expense, unless (i) the employment of such counsel has been authorized in writing by the Indemnifying Party, including(ii) the Indemnifying Party has not employed counsel to take charge of the defense within twenty (20) days after delivery of the applicable notice or, without limitationhaving elected to assume such defense, attorneys' feesthereafter ceases its defense of such action, disbursements and amounts paid or (or of which such iii) the Indemnified Party has become obligated reasonably concluded that there may be defenses available to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party it which are different from or additional to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given those available to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, (in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, which case the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with have the written consent right to direct the defense of such action on behalf of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), in any of which events the attorneys’ fees and expenses of counsel to the Indemnified Party shall be entitled borne by the Indemnifying Party.
(d) The Indemnifying Party shall promptly notify the Indemnified Party if the Indemnifying Party desires not to have sole control overassume, or participate in the defense of, any such third party claim, suit or settlement action.
(e) The Indemnified Party or Indemnifying Party may at any time notify the other of its intention to settle or compromise any Third Party Claim to the extent the Third Party Claim seeks an orderthird party claim, injunction suit or other equitable relief action against the Indemnified Party whichin respect of which payments may be sought by the Indemnified Party hereunder, if successfuland (i) the Indemnifying Party may settle or compromise any such claim, could materially interfere with suit or action solely for the businesspayment of money damages for which the Indemnified Party will be fully indemnified hereunder, operations, assets, condition (financial but shall not agree to any other settlement or otherwise) or prospects compromise without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld (it being agreed that any failure of an Indemnified Party to consent to any settlement or compromise involving relief other than monetary damages shall not be deemed to be unreasonably withheld), and (ii) the Indemnified Party may settle or compromise any such third party claim, suit or action solely for an amount not exceeding one thousand dollars ($1,000), but shall not settle or compromise any other matter without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld.
Appears in 1 contract
Procedures. If (ia) In order for a Person (the “Indemnified Party”) to be entitled to any Stockholder Event amount to be paid or any indemnification provided for under Section 9.01 or Section 9.02 in respect of, arising out of Breach occurs or is alleged and involving a UAG claim made by any Person against the Indemnified Party asserts that the Stockholder have become obligated to (a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," in each case as the context so requires”), such Indemnified Party must as promptly as reasonably practicable notify the Indemnifying Party (the “Indemnifying Party”) in writing of the Third Party Claim. Such notice shall contain, with respect to each claim, such facts and information as are then reasonably available, including the estimated amount of Losses and the specific basis for indemnification hereunder. The failure to give such notification shall not affect the payment or the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure. The Indemnified Party shall deliver to the Indemnifying Party, as promptly as reasonably practicable following such Indemnified Party’s receipt thereof, copies of all written notices and documents (including any court papers) received by such Indemnified Party relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall be entitled to participate in the defense thereof and, if it so chooses, by giving written notice to the Indemnified Party within thirty (30) days after the Indemnified Party has given notice of the Third Party Claim acknowledging in writing its irrevocable obligation to indemnify the Indemnified Party against any indemnifiable Losses that may result from the Third Party Claim, to assume (subject to the provisions of this Agreement) the defense of such claim at the Indemnifying Party’s expense and with counsel of its choice that is reasonably acceptable to the Indemnified Party. 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. If (i) the Indemnifying Party (A) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or his obligation otherwise, or (B) fails to actively and diligently pursue a Third Party Claim and is provided a written notice of such failure by the Indemnified Party and such failure is not reasonably cured within ten (10) Business Days after receipt of such notice, (ii) the Indemnified Party has been advised by outside legal counsel that there exists any conflict of interest between the Indemnified Party and the Indemnifying Party in connection with the defense of such Third Party Claim that would make the representation by the same counsel or the counsel selected by the Indemnifying Party inappropriate or the Indemnified Party would lose any defenses available to it which are different from or in addition to those available to the Indemnifying Party, (iii) the claim seeks an injunction or equitable relief against the Indemnified Party or would, in the case of a Purchaser Indemnitee, in the good faith belief of such Purchaser Indemnitee, be detrimental to the relationship with customers or suppliers, or the business of Purchaser or the Acquired Companies, (iv) such Third Party Claim seeks to impose criminal liability on an Indemnified Party, (v) the assumption of the defense by the Indemnifying Party is reasonably likely to cause a Purchaser Indemnitee to lose coverage under the RWI Policy or (vi) due to the limitations elsewhere in this Article IX, the applicable indemnification liability in respect of such Third Party Claim is less than the amount being sought (or that could be awarded in respect of such Third Party Claim), then such Indemnified Party will have the right to defend against such Third Party Claim at the Indemnifying Party’s expense and the Indemnifying Party will have the right to be represented with respect to such Third Party Claim by counsel at its own expense and shall cooperate in good faith in such defense, it being understood that the Indemnified Party’s right to indemnification for a Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
(c) The Indemnified Party and Indemnifying Party shall cooperate with each other in all commercially reasonable respects in connection with the defense of any Third Party Claim, including retaining and providing the other party records and information that are reasonably relevant to such Third Party Claim, and making employees reasonably available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnifying Party shall not agree to any settlement, compromise or discharge of a Third Party Claim without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), unless such settlement, compromise or discharge provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities in connection with such Third Party Claim and does not (i) create any liability of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunderhereunder (and the Indemnifying Party will promptly reimburse the Indemnified Party for such indemnifiable liability) or (ii) provide for any admission of criminal liability or wrongdoing or any injunctive relief or other non-monetary obligation affecting the Indemnified Party. If the Indemnified Party has assumed the defense, provided it shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).
(d) In the event any Indemnified Party should have a claim against any Indemnifying Party under Section 9.01 or Section 9.02 that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver written notice of such claim promptly to the Indemnifying Party. Subject to Section 9.04 and Section 9.06, the failure by any failure Indemnified Party to so notify the Indemnifying Party shall not relieve them the Indemnifying Party from any liability that it or he may have to the such Indemnified Party under this ARTICLE 9. If such notice relates Section 9.01 or Section 9.02, except to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist extent that the Indemnifying Party to the extent reasonably possibledemonstrates that it has been actually prejudiced by such failure. If the Indemnifying Party fails timely does not respond to defendany such claim within thirty (30) days after its receipt of such notice, contest then such claim will be deemed accepted.
(e) Purchaser and Seller shall cooperate with each other with respect to resolving any claim or otherwise protect against liability with respect to which one party is obligated to pay any amount to or indemnify the other party hereunder, including by making commercially reasonably efforts to mitigate or resolve any such Third claim or liability.
(f) An Indemnifying Party’s liability pursuant to this Article IX or Section 6.04 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting any insurance proceeds received by the Indemnified Party Claimand any indemnity, contribution or other similar payment received or reasonably expected to be received by the Indemnified Party in respect of any such claim. The Indemnified Party shall use its reasonable best efforts to recover (or cause the Acquired Companies to recover) under insurance policies or indemnity, contribution or other similar agreements for any Losses hereunder. An Indemnified Party’s ability to be indemnified for Losses hereunder shall not be affected by any knowledge it may have acquired or had the right ability to do soacquire prior to the Closing.
(g) Seller shall not be liable to pay any amount under this Article IX or Section 6.04 for any Losses to the extent expressly included on the Closing Statement in calculating the Adjusted Working Capital, including, without limitation, the right to make Unpaid Company Transaction Expenses or Closing Date Indebtedness.
(h) In no event shall any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (obtain reimbursement or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability restitution more than once in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partysame Loss.
Appears in 1 contract
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and a UAG An Indemnified Party asserts that seeking indemnification in respect of, arising out of or involving a Loss or a claim or demand made by any person against the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as (a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," ”) shall deliver notice (a “Claim Notice”) in each case as respect thereof to the context so requires), party against whom indemnity is sought (the “Indemnifying Party”) with reasonable promptness after receipt by such Indemnified Party shall give written of notice to of the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each and shall provide the Indemnifying PartyParty with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to deliver a Claim Notice, jointly and severallyhowever, agrees shall not release the Indemnifying Party from any of its obligations under this Article VII except to defend, contest or otherwise protect the extent that the Indemnifying Party is materially prejudiced by such failure.
(b) If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any such and all Losses that may result from a Third Party Claim that is exclusively for civil monetary damages at his or its sole cost and expense. Such Indemnified law pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party upon written notice to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have within 15 days of receipt of a Claim Notice from the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim, to assume the defense thereof (except that the defense or prosecution of such claim shall be tendered to the insurance carrier of the W&I Insurance Policy if such carrier has assumed the defense thereof under the W&I Insurance Policy) at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in assume the defense of)of any Third Party Claim for equitable or injunctive relief, any Third Party Claim relating to Taxes or any claim that would impose criminal liability or damages, and the Indemnified Party shall have the right to defend, at the expense of the Indemnifying Party, any such Third Party Claim. The Indemnifying Party shall be entitled liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to have sole control overassume the defense thereof. If the Indemnifying Party does not expressly elect (or is not entitled) to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 7.4(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim (except that the defense, prosecution or settlement of such claim may be tendered by the Indemnified Party to the insurance carrier of the W&I Insurance Policy if such carrier has agreed to assume the defense thereof under the W&I Insurance Policy). If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim to the extent the Third Party Claim seeks an orderClaim, injunction or other equitable relief against the Indemnified Party whichshall, if successfulat the Indemnifying Party’s expense, could materially interfere cooperate with the businessIndemnifying Party in such defense and make available to the Indemnifying Party all witnesses, operationspertinent records, assetsmaterials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, condition (financial or otherwise) or prospects the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or judgment (i) involves a finding or admission of wrongdoing, (ii) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liability in respect of such Third Party Claim (iii) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder or (iv) requires the consent of the carrier of the W&I Insurance Policy under the terms of the W&I Insurance Policy.
(c) An Indemnified Party seeking indemnification in respect of, arising out of or involving a Loss or a claim or demand hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim”) shall deliver a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such Direct Claim, and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VII except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VII.
(d) The Indemnifying Party shall not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(e) Notwithstanding the provisions of Sections 8.8 and 8.9, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere.
(f) An Indemnifying Party shall not be liable in respect of, arising out of or involving a Loss or a claim or demand made by any person against the Indemnifying Person unless a Claim Notice is delivered to the Indemnifying Person on or before the survival periods set out in Section 7.1.
Appears in 1 contract
Procedures. If Promptly after receipt by a Person entitled to indemnification under subsection (ia) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (iib) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "“Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and ”) of notice of any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as pending or threatened claim against it (a "Third Party “Claim," in each case as the context so requires”), such Indemnified Party shall give prompt written notice (including copies of all papers served with respect to such claim) to the party to whom the Indemnified Party is entitled to look for indemnification (the “Indemnifying Party”) of the commencement thereof which notice shall describe in reasonable detail the nature of the Third Party Claim, an estimate HOU03:1138115.4 44 of its or his obligation the amount of damages attributable to provide the Third Party Claim to the extent feasible and the basis of the Indemnified Party’s request for indemnification hereunder, under this Agreement; provided that any the failure to so notify the Indemnifying Party shall not relieve them from the Indemnifying Party of any liability that it or he may have to any Indemnified Party except to the extent the Indemnifying Party demonstrates that it is prejudiced thereby. In case any Claim that is subject to indemnification under subsection (a) shall be brought against an Indemnified Party and it shall give notice to the Indemnifying Party of the commencement thereof, the Indemnifying Party may, and at the request of the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claimshall, each Indemnifying Party, jointly participate in and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such control the defense of the Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by with counsel of such its choice reasonably satisfactory to the Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such The Indemnified Party shall have the right to do soemploy separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment thereof has been specifically authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party failed to assume the defense and employ counsel or failed to diligently prosecute or settle the Third Party Claim or (iii) there shall exist or develop a conflict that would ethically prohibit counsel to the Indemnifying Party from representing the Indemnified Party. If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, including, without limitation, by making any counterclaim against the right Person asserting the Third Party Claim or any cross-complaint against any Person, in each case only if and to make the extent that any such counterclaim or cross-complaint arises from the same actions or facts giving rise to the Third Party Claim. The Indemnifying Party shall be the sole judge of the acceptability of any compromise or settlement thereofOf any claim, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (litigation or proceeding in respect of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by indemnity may be sought hereunder, provided that the Indemnifying Party to notify such will give the Indemnified Party reasonable prior written notice of its or their election to defend any such proposed settlement or compromise and will not consent to the entry of any judgment or enter into any settlement with respect to any Third Party Claim without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld. The Indemnifying Party (if the Indemnified Party is entitled to indemnification hereunder) shall reimburse the Indemnified Party for its reasonable out of pocket costs incurred with respect to such cooperation. If the Indemnifying Party fails to assume the defense of a Third Party Claim within fifteen (15) days a reasonable period after receipt of written notice thereof shall have been given pursuant to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party first sentence of its this subparagraph (c), or their right to defend such Third Party Claim. If if the Indemnifying Party assumes the defense of the particular Indemnified Party pursuant to this subparagraph (c) but fails diligently to prosecute or settle the Third Party Claim, then the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification hereunder), the Third Party Claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Party to a final conclusion or settled. The Indemnified Party shall have full control of such defense and proceedings; provided that the Indemnified Party shall not settle such Third Party Claim without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section, and the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except bear its own costs and expenses with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff respect to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partyparticipation.
Appears in 1 contract
Sources: Limited Partnership Agreement (LyondellBasell F&F Holdco, LLC)
Procedures. If (ia) In order for any Stockholder Event Buyer Indemnitee or Seller Indemnitee (each, an “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement in respect of, arising out of Breach occurs or is alleged and involving a UAG claim made by any Person against the Indemnified Party asserts that the Stockholder have become obligated to (a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third “Third-Party Claim," in each case as the context so requires”), such Indemnified Party must notify the Party which may be required to indemnify the Indemnified Party (the “Indemnifying Party”) in writing (and in reasonable detail) of the Third-Party Claim within fifteen (15) Business Days after receipt by such Indemnified Party of notice of the Third-Party Claim; provided, however, that failure to give such notification shall give written notice not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been prejudiced as a result of its or his obligation to provide indemnification hereunder, provided such failure (except that any failure to so notify the Indemnifying Party shall not relieve them from be liable for any liability expenses incurred during the period in which the Indemnified Party failed to give such notice); and provided, further, that if such notice is not given prior to the expiration of the Survival Period, the Indemnified Party shall have no right to indemnification hereunder. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third-Party Claim.
(b) If a Third-Party Claim is made against an Indemnified Party, the Indemnifying Party shall be entitled to participate in the defense thereof and, if it or he may have so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party. Should the Indemnifying Party so elect to assume the defense of a Third-Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such for any legal expenses subsequently incurred by the Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in connection with the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possiblethereof. If the Indemnifying Party fails timely to defendassumes such defense, contest or otherwise protect against such Third Party Claim, such the Indemnified Party shall have the right to do soparticipate in the defense thereof and to employ counsel, includingat its own expense, without limitation, separate from the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from counsel employed by the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by it being understood that the Indemnifying Party to notify 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 its or their election the Third-Party Claim as provided above). If the Indemnifying Party chooses to defend any such Third or prosecute a Third-Party Claim within fifteen Claim, all the Indemnified Parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (15upon the Indemnifying Party’s request) days after notice thereof shall have been given the provision to the Indemnifying Party shall be deemed of records and information that are reasonably relevant to such Third-Party Claim, and making employees available on a waiver by mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party assumes the defense of its or their right to defend such Third a Third-Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld). If the Indemnifying Party assumes the defense of the particular Third a Third-Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third-Party Claim that the Indemnifying Party shall not, may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in the defense of connection with such Third Third-Party Claim, consent which releases the Indemnified Party completely in connection with such Third-Party Claim and that would not otherwise materially and adversely affect the Indemnified Party.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party under Section 10.2 or Section 10.3 that does not involve a Third-Party Claim being asserted against or sought to entry of any judgment or enter into any settlement, except with the written consent of be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim with reasonable promptness to the Indemnifying Party and in any event prior to the expiration of the underlying representations and warranties, if applicable. In addition, The failure by any Indemnified Party so to notify the Indemnifying Party shall not enter into relieve the Indemnifying Party from any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff liability that it may have to such Indemnified Party a full release from all under Section 10.2 or Section 10.3, except to the extent that the Indemnifying Party demonstrates that it has been prejudiced by such failure; provided, that if such notice is not given prior to the expiration of the Survival Period, the Indemnified Party shall have no right to indemnification hereunder. If the Indemnifying Party disputes its liability in with respect of to such Third Party Claim. Notwithstanding the foregoingclaim, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled proceed in good faith to have sole control over, the defense or settlement negotiate a resolution of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party whichsuch dispute and, if successfulnot resolved through negotiations, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects such dispute shall be resolved by litigation in an appropriate court of the Indemnified Partycompetent jurisdiction.
Appears in 1 contract
Procedures. If (i) any Stockholder Event of Breach occurs or legal action is alleged and a UAG Indemnified commenced against an Indemnitee entitled to indemnification under this Section 20, prompt written notice thereof shall be given to the indemnifying Party. After such notice, if the indemnifying Party asserts shall acknowledge in writing to such Indemnitee that the Stockholder have become obligated right of indemnification under this Agreement applies with respect to such claim, then the indemnifying Party shall be entitled, if it so elects, in a UAG Indemnified Party pursuant written notice delivered to SECTION 9.1the Indemnitee not fewer than ten (10) days prior to the date on which a response to such claim is due, or if any Stockholderto take control of the defense and investigation of such claim and to employ and engage attorneys of its sole choice, and reasonably satisfactory to the indemnified Party, to handle and defend same, at the indemnifying Party's Third Party Claim is begun, made or instituted as a result of which expense. The Indemnitee shall cooperate in all reasonable respects with the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified indemnifying Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" its attorneys in the investigation, trial, and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," defense of such claim and any UAG Third Party Claim appeal arising therefrom; provided, however, that the Indemnitee may, at its own expense, participate, through its attorneys or otherwise, in such investigation, trial, and defense of such claim and any Stockholder Third Party Claim is sometimes referred to as appeal arising therefrom. No settlement of a "Third Party Claim," in each case as claim that involves a remedy other than the context so requires), such Indemnified payment of money by the indemnifying Party shall give be entered into by the indemnifying Party without the prior written notice consent of the Indemnitee, which consent may be given or withheld in the Indemnitee's sole discretion, to the Indemnifying extent that it concerns equitable remedies or the Indemnitee's Confidential Information or proprietary technology. After notice by the indemnifying Party of its or his obligation election to provide indemnification hereunderassume full control of the defense of any such claim, provided that any failure to so notify the Indemnifying Party Indemnitee shall not relieve them from any liability that it or he may have be liable to the Indemnified indemnifying Party under this ARTICLE 9. If for any legal expenses incurred thereafter by such notice relates to a Third indemnifying Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in connection with the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possiblethat claim. If the Indemnifying indemnifying Party fails timely does not assume full control over the defense of a claim subject to defendsuch defense as provided in this Section, contest or otherwise protect against the indemnifying Party may participate in such Third Party Claimdefense, such Indemnified Party at its expense, and the Indemnitee shall have the right to do sodefend the claim in such manner as it may deem appropriate, including, without limitation, at the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense expense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified indemnifying Party.
Appears in 1 contract
Sources: Data Management Outsourcing Agreement (Acxiom Corp)
Procedures. If (ia) A Person that may be entitled to be indemnified under this Agreement (the “Indemnified Party”), shall promptly notify the party or parties liable for such indemnification (the “Indemnifying Party”) in writing of any Stockholder Event of Breach occurs pending or is alleged and a UAG threatened claim or demand that the Indemnified Party asserts has determined has given or would reasonably be expected to give rise to such right of indemnification (including a pending or threatened claim or demand asserted by a third party against the Indemnified Party, such claim being a “Third Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or demand; provided, that the Stockholder have become obligated failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failure, it being agreed that notices for claims in respect of a UAG breach of a representation, warranty, covenant or agreement must be delivered prior to the expiration of any applicable survival period specified in Section 6.01 for such representation, warranty, covenant or agreement.
(b) Upon receipt of a notice of a Third Party Claim for indemnity from an Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requiresSection 6.04(a), such Indemnified Party shall give written notice to the Indemnifying Party of its or his obligation to provide indemnification hereunderwill be entitled, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have by notice to the Indemnified Party under this ARTICLE 9. If delivered within 20 Business Days of the receipt of notice of such notice relates to a Third Party Claim, each Indemnifying Party, jointly to assume the defense and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any control of such Third Party Claim (at his or its sole cost and expense. Such the expense of such Indemnifying Party); provided, that (i) the Indemnifying Party allows the Indemnified Party shall have the right, but not the obligation, a reasonable opportunity to participate in the defense of such Third Party Claim with its own counsel and at its own expense in expense, (ii) such Third Party Claim does not seek an injunction or other equitable relief that would be binding upon the defense thereof by counsel of such Indemnified Party's choice , and shall in any event cooperate with and assist (iii) the Indemnifying Party to conducts the extent reasonably possibledefense of such Third Party Claim actively. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such does not assume the defense and control of any Third Party Claim, such Indemnified Party shall have the right Claim pursuant to do so, including, without limitationthis Section 6.04(b), the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from assume and control such defense, but the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as may nonetheless participate in the result defense of such Third Party ClaimClaim with its own counsel and at its own expense. Failure by SMHI shall, and shall cause its Affiliates and Representatives to, reasonably cooperate with the Indemnifying Party to notify such Indemnified Party in the defense of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver Claim, including by the Indemnifying Party furnishing books and records and personnel and witnesses, as appropriate for any defense of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes has assumed the defense and control of the particular a Third Party Claim, it shall be authorized to consent to a settlement or compromise of, or the Indemnifying entry of any judgment arising from, any Third Party shall notClaim, in its sole discretion and without the defense Consent of any Indemnified Party; provided, that such compromise, settlement or judgment (x) does not involve any injunctive relief or finding or admission of any violation of Law or admission of any wrongdoing by any Indemnified Party and (y) by its terms unconditionally releases the Indemnified Party completely in respect of such Third Party Claim, consent Claim without any cost whatsoever to the Indemnified Party. No Indemnified Party will Consent to the entry of any judgment or enter into any settlement, except settlement or compromise with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any respect to a Third Party Claim (except with without the prior written consent Consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party.
Appears in 1 contract
Procedures. If (ia) The party seeking indemnification under this Article X (the “Indemnified Party“) agrees to give prompt notice (the “Notice of Claim“) to the party from whom indemnification is sought (the “Indemnifying Party“) of the assertion of any Stockholder Event claim by the Indemnified Party, or the commencement of Breach occurs any suit, action or is alleged and proceeding or the assertion of any claim by a UAG third party in respect of which indemnity may be sought under this Article IX; provided, however, that no delay on the part of the Indemnified Party asserts in notifying the Indemnifying Party will relieve the Indemnifying Party of any liability or obligation hereunder, except to the extent that the Stockholder have become obligated Indemnifying Party clearly demonstrates that the defense of any third party suit, action or proceeding has been materially prejudiced by the Indemnified Party’s failure to give such notice.
(b) If such Notice of Claim relates to a UAG suit, action or proceeding by a third party, the Indemnifying Party may upon written notice given to the Indemnified Party pursuant within twenty (20) days of the receipt by the Indemnifying Party of such Notice of Claim, assume control of the defense of such action, suit or proceeding with counsel reasonably satisfactory to SECTION 9.1Indemnified Party. If the Indemnifying Party does not so assume control of such defense, the Indemnified Party will have the right to control such defense. The party not controlling such defense may participate therein at its own expense; provided that if the Indemnifying Party assumes control of such defense and there exists a conflict of interest between the interests of the Indemnifying Party and those of Indemnified Party with respect to such claim, the Indemnified Party may retain counsel satisfactory to it and the reasonable fees and expenses of counsel to the Indemnified Party will be considered Indemnifiable Amounts for purposes of this Agreement. Notwithstanding anything to the contrary contained herein, if the Indemnified Party determines in its reasonable judgment that there is a probability that a claim may materially adversely affect it or if any Stockholder's Third Party Claim is begun, made or instituted its rights under this Agreement other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, then the Stockholder may become obligated to a UAG Indemnified Party hereundermay, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give by written notice to the Indemnifying Party Party, assume the exclusive right to defend, compromise, or settle such claim and the reasonable fees and expenses of its counsel will be considered Indemnifiable Amounts for purposes of this Agreement. The party controlling such defense will keep the other party advised of the status of such action, suit or his obligation to provide indemnification hereunder, provided that any failure to so notify proceeding and the defense thereof and will consider in good faith recommendations made by the other party with respect thereto.
(c) Neither the Indemnifying Party shall not relieve them from any liability that it or he may have to nor the Indemnified Party under this ARTICLE 9. If such notice relates will agree to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with action, suit or proceeding without the prior written consent of such Indemnified Party) the other party, which consent will not be unreasonably withheld or delayed. [For purposes hereof, a party’s withholding of its consent to any settlement which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party the other party of a full complete irrevocable release from all liability in respect to such claim or litigation or which requires action (or limits action) other than the payment of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not money that would be entitled considered to control (but shall be entitled Indemnifiable Amounts under this Agreement will be deemed to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partyreasonable.]
Appears in 1 contract
Sources: Asset Purchase Agreement
Procedures. If Each party claiming a right to ---------- indemnification under this Article VI (i) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and ") shall give ---------- notice to the Stockholder are sometimes referred to as an party from whom such indemnification is or may be sought (the "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), ) promptly after such Indemnified Party shall give written notice has actual knowledge of any claim as to which indemnification may be sought, and the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense, or if it so elects, assume the defense thereof by of any such claim and any action or proceeding resulting therefrom, including the employment of counsel and the payment of all expenses. The failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party from its obligations to indemnify such Indemnified Party, except to the extent the Indemnified Party's choice failure to so notify actually and shall in any materially prejudices the Indemnifying Party's ability to defend against such claim, action or proceeding. In the event cooperate with and assist that the Indemnifying Party elects to assume the extent reasonably possible. If the Indemnifying Party fails timely to defenddefense in any action or proceeding, contest or otherwise protect against such Third Party Claim, such an Indemnified Party shall have the right to do soemploy separate counsel in any such action or proceeding and to participate in the defense thereof, includingbut such Indemnified Party shall pay the fees and expenses of such separate counsel unless (i) the Indemnifying Party has agreed to pay such fees and expenses, without limitation, (ii) any relief other than the right payment of money is sought against the Indemnified Party or (iii) the named parties to make any compromise such action or settlement thereofproceeding (including any impleaded parties) include such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall be entitled have been advised by counsel that there is a conflict of interest between such Indemnified Party and the Indemnifying Party in the conduct of the defense of such action (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to recover employ separate counsel at the entire Cost thereof from expense of the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes not assume the defense of the particular Third Party Claimsuch action or proceeding on such Indemnified Party's behalf, it being understood, however, that the Indemnifying Party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Parties, which firm shall be designated in writing by the applicable Indemnified Parties). If the Indemnifying Party elects not to defend, or if, after commencing or undertaking any such defense, the Indemnifying Party fails to prosecute or withdraws from such defense or fails to appeal any Judgment adverse or unfavorable to the Indemnified Party, the Indemnified Party shall have the right to undertake the defense, settlement or appeal thereof (as the case may be), at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of any such Third claim, investigation, action, suit, hearing or proceeding pursuant to this Section 6.03 and proposes ------------ to settle the same prior to a final judgment thereon or to forgo or abandon any appeal available after final judgment thereon, then the Indemnified Party Claimshall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the right to participate in the settlement, assume or reassume the defense thereof or prosecute such appeal, in each case at the Indemnifying Party's expense. The Indemnifying Party shall not, without written consent of such Indemnified Party, settle or compromise or consent to entry of any judgment with respect to any such claim, investigation, action, suit, hearing or enter into proceeding (i) in which any settlement, except with relief other than the written consent payment of money damages is or may be sought against such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim or (except with the written consent of such Indemnified Partyii) which does not include as an unconditional term thereof the giving by the claimant claimant, Person conducting such investigation or the initiating such hearing, plaintiff or petitioner to such Indemnified Party of a full release from all liability in with respect to such claim, investigation, action, suit or proceeding and all other claims or causes of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control action (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense known or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction unknown) arising or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects which might arise out of the Indemnified Partysame facts.
Appears in 1 contract
Sources: Investor Rights Agreement (Convergent Communications Inc /Co)
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and In order for a UAG Purchaser Indemnified Party asserts that the Stockholder have become obligated to a UAG or Seller Indemnified Party pursuant (the “Indemnified Party”) to SECTION 9.1be entitled to any indemnification provided for under this Agreement in respect of, arising out of or if involving a Loss or a claim or demand made by any Stockholder's Third Party Claim is begun, made or instituted as a result of which Person against the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," in each case as the context so requires”), such Indemnified Party shall give deliver notice thereof to the Party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim, describing in reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount or method of computation of the amount of such claim (if known); provided, however, the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such action is prejudiced by the Indemnified Party under this ARTICLE 9. If Party’s failure to give such notice relates to a Third Party Claim, each notice.
(b) The Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party upon written notice to the extent reasonably possible. If Indemnified Party within 30 days of receipt of notice from the Indemnifying Indemnified Party fails timely to defend, contest or otherwise protect against of the commencement of such Third Party Claim, such Indemnified Party shall have to assume the right to do so, including, without limitation, defense thereof at the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from expense of the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure with counsel selected by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given and reasonably satisfactory to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party ClaimIndemnified Party. If the Indemnifying Party assumes the defense of the particular such Third Party Claim, the Indemnifying Indemnified Party shall not, have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled cooperate with the Indemnifying Party in such defense and make available to have sole the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party's possession or under the Indemnified Party’s control overrelating thereto as is reasonably required by the Indemnifying Party. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the defense Indemnified Party shall not admit any liability with respect to, or settlement of any settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim to without the extent Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim seeks an orderbeing asserted against or sought to be collected from such Indemnified Party, injunction or other equitable relief against the Indemnified Party whichshall deliver notice of such claim promptly to the Indemnifying Party, if successfuldescribing in reasonable detail the facts giving rise to any claim for indemnification hereunder, could materially interfere with the business, operations, assets, condition (financial amount or otherwise) or prospects method of computation of the amount of such claim (if known). The Indemnified PartyParty shall reasonably cooperate and assist the Indemnifying Party in determining the validity of any claim for indemnity by the Indemnified Party and in otherwise resolving such matters. Such assistance and cooperation shall include providing reasonable access to and copies of information, records and documents relating to such matters, furnishing employees to assist in the investigation, defense and resolution of such matters and providing legal and business assistance with respect to such matters.
Appears in 1 contract
Sources: Asset Purchase Agreement (Glenayre Technologies Inc)
Procedures. If The Party seeking indemnification under Section 8.2 or 8.3 (ithe “Indemnified Party”) may make claims for indemnification hereunder by giving written notice (a “Claim Notice”) to the Party required to provide indemnification hereunder (the “Indemnifying Party”). Such notice shall briefly explain the nature of the claim and the parties known to be involved, and shall specify the amount thereof to the extent known by the Indemnified Party. Each Indemnifying Party to which a Claim Notice is given shall respond to any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that has given a Claim Notice (a “Claim Response”) within twenty (20) days (the “Response Period”) after the date that the Stockholder have become obligated to a UAG Indemnified Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnifying Party pursuant to SECTION 9.1, or if giving the Claim Response disputes the claim for indemnification described in the Claim Notice and whether it will defend any Stockholder's Third Party Claim is begunspecified in such Claim Notice at its own cost and expense. If any Indemnifying Party fails to give a Claim Response within the Response Period, made or instituted as a result of which such Indemnifying Party shall be deemed to have disputed the Stockholder may become obligated claim for indemnification described in the related Claim Notice and to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated have elected not to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if defend any UAG Third Party Claim is begun, made specified in such Claim Notice. The aforesaid election or instituted as a result deemed election by the Indemnifying Party not to assume the defense of which UAG may become obligated to a Stockholder the Indemnified Party hereunder (for purposes of this ARTICLE 9, with respect to any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and specified in such Claim Notice, however, shall, except as contemplated by the following proviso, be subject to the right of the Indemnifying Party to subsequently assume the defense of the Indemnified Party with respect to any Stockholder such any Third Party Claim is sometimes referred at any time prior to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give written notice to the Indemnifying Party of its settlement or his obligation to provide indemnification hereunder, final determination thereof; provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have the right to so assume the defense of the Indemnified Party under this ARTICLE 9with respect to any Third Party Claim which the Indemnifying Party has (or is deemed to have) previously elected not to defend to the extent that the Indemnified Party would be prejudiced as a result of such assumption. If such notice relates an Indemnifying Party then or thereafter elects pursuant to the foregoing to assume the defense of an Indemnified Party with respect to a Third Party ClaimClaim specified in such Claim Notice, each Indemnifying Partythen, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against without limiting any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist action the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall may have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or on account of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoingactual fraud, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and recover from the Indemnified Party the costs and expenses incurred by the Indemnifying Party in providing such defense, whether or not the Indemnifying Party disputes or is deemed to have disputed the claim for indemnification described in the related Claim Notice. If any Indemnifying Party gives a Claim Response with respect to a Claim Notice and fails to dispute (or reserve the right to dispute) any claim for indemnification described in such Claim Notice, then the Indemnifying Party shall be entitled deemed to have sole control over, accepted and agreed to each such claim for indemnification as to which it fails to dispute or reserve the defense or settlement of any Third Party right to dispute in its Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified PartyResponse.
Appears in 1 contract
Sources: Asset Sale Agreement (Sunoco Inc)
Procedures. (a) If any Person who or which is entitled to seek indemnification under SECTION 9.2 (ian "INDEMNIFIED PARTY") receives notice of the assertion or commencement of any Stockholder Event of Breach occurs or is alleged and a UAG Third-Party Claim against such Indemnified Party asserts that with respect to which the Stockholder have become Person against whom or which such indemnification is being sought (an "INDEMNIFYING PARTY") is obligated to provide indemnification under this Agreement, the Indemnified Party will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 days after receipt of such written notice of such Third-Party Claim. Such notice by the Indemnified Party will describe the Third-Party Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if reasonably estimable, of the Damages that have been or may be sustained by the Indemnified Party. The Indemnifying Party will have the right to participate in, or, by giving written notice to the Indemnified Party, to assume, the defense of any Third-Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which will be reasonably satisfactory to the Indemnified Party), and the Indemnified Party will cooperate in good faith in such defense.
(b) If, within 30 days after giving notice of a UAG Indemnified Third-Party Claim to an Indemnifying Party pursuant to SECTION 9.19.3(a), or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG an Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give receives written notice to from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such Third-Party Claim as provided in the last sentence of SECTION 9.3(a), the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; PROVIDED, HOWEVER, that if the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third-Party Claim within twenty days after receiving written notice from the Indemnified Party, the Indemnified Party may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs and expenses paid or his obligation incurred in connection therewith (if the Indemnifying Party is obligated to provide indemnification hereunderunder this Agreement with respect to the underlying Third-Party Claim); PROVIDED, provided HOWEVER, that any failure to so notify the Indemnifying Party shall not relieve them from be liable for the costs and expenses of more than one counsel for all Indemnified Parties in any liability that it or he may have to one jurisdiction. Without the prior written consent of the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall will not enter into any settlement of any Third Third-Party Claim (except with which would lead to liability or create any financial or other obligation on the written consent part of such the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, or which provides for injunctive or other non-monetary relief applicable to the Indemnified Party) which , or does not include as an unconditional term thereof the giving by the claimant release of all Indemnified Parties. If a firm offer is made to settle a Third-Party Claim without leading to liability or the plaintiff creation of a financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoingoffer, the Indemnifying Party shall will give written notice to the Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within ten days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third-Party Claim and, in such event, the maximum liability of the Indemnifying Party as to such Third-Party Claim will not be entitled exceed the amount of such settlement offer. The Indemnified Party will provide the Indemnifying Party with reasonable access during normal business hours to control (but books, records and employees of the Indemnified Party necessary or desirable in connection with the Indemnifying Party's defense of any Third-Party Claim which is the subject of a claim for indemnification by an Indemnified Party hereunder. If the Sellers elect to assume the defense as Indemnifying Parties of a Third-Party Claim, then the Sellers shall be entitled entitle to participate at their own expense in pay the applicable defense of)costs out of the Escrow Amount, or if they pay such costs then to be reimbursed for such costs, and the Buyer shall execute with Sellers such direction to the Escrow Agent to effect such result.
(c) Any claim by an Indemnified Party shall be entitled to have sole control over, the defense or settlement on account of any Third Damages which does not result from a Third-Party Claim to (a "DIRECT CLAIM") will be asserted by giving the extent the Third Indemnifying Party Claim seeks an order, injunction or other equitable relief against reasonably prompt written notice thereof. Such notice by the Indemnified Party whichwill describe the Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if successfulreasonably practicable, could materially interfere with the business, operations, assets, condition (financial of Damages that has been or otherwise) or prospects of may be sustained by the Indemnified Party. The Indemnifying Party will have a period of 30 days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such 30 day period, the Indemnifying Party will be deemed to have rejected such claim, in which event the Indemnified Party will be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.
(d) A failure to give timely notice or to include any specified information in any notice as provided in SECTION 9.3(a), 9.3(b) or 9.3(c) (in contrast to the notice deadlines in SECTION 9.1 and SECTION
Appears in 1 contract
Sources: Stock Purchase Agreement (Pacific Energy Resources LTD)
Procedures. If (a) In the event that any claim shall be asserted by any third party against the Buyer Indemnitees or Seller Indemnitees (Buyer Indemnitees or Seller Indemnitees, as the case may be, hereinafter, the “Indemnitees”), which, if sustained, would result in a Deficiency, then the Indemnitees, as promptly as practicable after learning of such claim, shall notify the Indemnifying Party of such claim, and shall extend to the Indemnifying Party a reasonable opportunity to defend against such claim, at the Indemnifying Party’s sole expense; provided, however, that the Indemnifying Party proceeds in good faith, expeditiously and diligently. The Indemnitees shall, at their option and expense, have the right to participate in any defense undertaken by the Indemnifying Party with legal counsel of their own selection. No settlement or compromise of any claim which may result in a Deficiency may be made by the Indemnifying Party without the prior written consent of the Indemnitees unless: (i) any Stockholder Event prior to such settlement or compromise the Indemnifying Party acknowledges in writing its obligation to pay in full the amount of Breach occurs the settlement or is alleged compromise and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or all associated expenses; and (ii) the Indemnitees are furnished with a UAG Event full release.
(b) In the event that the Indemnitees assert the existence of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and Deficiency against the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party they shall give written notice to the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to nature and amount of the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possibleDeficiency asserted. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, includingwithin a period of thirty (30) calendar days after receipt of the Indemnitees’ notice, without limitation, attorneys' fees, disbursements and amounts paid shall not give written notice to the Indemnitees announcing its intent to contest such assertion of the Indemnitees (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure notice by the Indemnifying Party being hereinafter referred to notify as the “Contest Notice”), such Indemnified Party assertion of its or their election the Indemnitees shall be deemed accepted and the amount of the Deficiency shall be deemed established. In the event, however, that a Contest Notice is given to defend any such Third Party Claim the Indemnitees within fifteen (15) days after notice thereof said 30-day period, then the contested assertion of a Deficiency shall have been given be settled by arbitration to be held in Salt Lake City, Utah in accordance with the Commercial Rules of the American Arbitration Association then existing. The determination of the arbitrator shall be delivered in writing to the Indemnifying Party and the Indemnitees and shall be final, binding and conclusive upon all of the parties hereto, and the amount of the Deficiency, if any, determined to exist, shall be deemed a waiver by established.
(c) The Indemnitees and the Indemnifying Party may agree in writing, at any time, as to the existence and amount of its or their right to defend such Third Party Claim. If a Deficiency, and, upon the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense execution of such Third Party Claimagreement, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but Deficiency shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partydeemed established.
Appears in 1 contract
Procedures. (a) If (i) any Stockholder Event of Breach there occurs or is alleged and an event which a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party is an indemnifiable event pursuant to SECTION 9.1Section 8.2 or Section 8.3, or if any Stockholder's Third the Party Claim is begun, made or instituted as a result of which seeking indemnification (the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and ") shall notify the Stockholder are sometimes referred other Party ----------------- obligated to as an provide indemnification (the "Indemnifying Party," ") promptly in ------------------ writing specifying the facts, to the extent known, constituting the basis for such claim and the amount, to the extent known, of the claim asserted. If such event involves (a) any UAG Third Person other than a Party Claim and or (b) the commencement of any Stockholder Third Action by any Person other than a Party Claim is sometimes (any such claim or Action being hereinafter referred to as a "Third Party Claim," in each case as the context so requires"), such the Indemnified Party shall ----------------- give such Indemnifying Party prompt written notice of such Third Party Claim which identifies such claim as a Third Party Claim, specifies the facts constituting the basis of such Third Party Claim and the amount, to the extent known, of such Third Party Claim; provided, however, that the failure to -------- ------- provide prompt notice as provided herein will relieve the Indemnifying Party of its or his obligation obligations hereunder only to provide indemnification the extent that such failure prejudices the Indemnifying Party hereunder. The Indemnifying Party shall be entitled to participate in such Third Party Claim and to assume the defense thereof with counsel selected by the Indemnifying Party. After notice from the Indemnifying Party to the Indemnified Party that the Indemnifying Party has elected to assume the defense of any Third Party Claim, provided that any failure to so notify the Indemnifying Party shall not relieve them from be liable for any liability that it legal, investigative or he may have to other fees or expenses subsequently incurred by the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in connection with the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in, but not control, the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party; provided that (i) if in the reasonable opinion of counsel for the Indemnified Party, there is a conflict of interest between the Indemnified Party and the Indemnifying Party or (ii) a claim involves an allegation of violation of criminal law, the Indemnifying Party shall not, be responsible for the reasonable fees and expenses of one counsel to such Indemnified Party in connection with such defense to the extent such fees and expenses relate to a claim subject to a conflict of interest or defense of a claim based on an allegation of a violation of criminal law, but in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one such additional counsel in any action or series of related actions. In the event a claim involves an allegation of a violation of criminal law, the Parties shall enter into a joint defense agreement in form and substance reasonably acceptable to the Parties. Subject to bona fide concerns regarding attorney-client privilege, the Indemnifying Party and the Indemnified Party agree to cooperate fully with each other and their respective counsel in connection with the defense, negotiation or settlement of any such Third Party Claim, consent including providing access to entry any relevant books and records, properties and Representatives. If the Indemnifying Party assumes the defense of any judgment a Third Party Claim, no settlement or enter into any settlement, except with compromise thereof may be effected (A) by the Indemnifying Party without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) unless (x) there is no finding or admission of any violation of Law or any violation of the rights of any Person by any Indemnified Party and all Indemnified Parties are expressly and unconditionally released from any Liability related to such Third Party Claim, with prejudice, and (y) all relief provided is paid or satisfied in full by the Indemnifying Party or (B) by the Indemnified Party without the consent of the Indemnifying Party. If the Indemnifying Party elects not to assume the defense of a Third Party Claim, the Indemnified Party shall defend such Third Party Claim with counsel selected by the Indemnified Party. In addition, which is reasonably acceptable to the Indemnifying Party, and the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with bear the written consent reasonable fees and expenses of such Indemnified Party) which does counsel. Whether or not include as an unconditional term thereof the giving by Indemnifying Party assumes the claimant or the plaintiff to such Indemnified Party defense of a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled not admit any Liability with respect to, or settle, compromise or discharge, or offer to have sole control oversettle, the defense compromise or settlement of any discharge, such Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed by the Indemnifying Party. In no event shall an Indemnifying Party be liable for any settlement effected without its written consent.
(b) In addition to, and notwithstanding any other provisions relating to Third Party Claims set forth elsewhere in this Section 8.4, any Remedial Action relating to any Seller Environmental Liabilities shall additionally be governed by the procedures set forth in this Section 8.4(b). The Seller shall have the right, at its option, to undertake sole and exclusive control over all aspects of any such Remedial Action (including retention of consultants, selection of remedial measures and negotiations and agreements with interested government agencies and third parties). In connection therewith, the Buyer agrees to provide the Seller with reasonable access to the subject facility (and to relevant documents and personnel) for purposes of conducting any Remedial Action to the extent that such access is within the Third Party Claim seeks an ordercontrol or possession of the Buyer. The Parties shall keep one another apprised of major developments relating to such matter and shall, injunction subject to applicable legal privileges, make all final reports, filings, and other documents relating to such matter available for inspection by one another upon request. Without limiting the generally of the foregoing, (i) the Sellers shall keep the Buyer reasonably informed as to all aspects of the Remedial Actions, including all discussions and communications with Governmental Authorities, and (ii) the Buyer shall be permitted to review and comment on all material submissions proposed to be made by the Seller to any conferences with Governmental Authority prior to their submission and to participate in all material meetings and conferences with Governmental Authority relating to such Remedial Action, Environmental Liability and the Seller agrees to take into account all reasonable requests of the Buyer. Any costs incurred by the Buyer relating to oversight of activities undertaken hereunder by the Seller shall not be subject to indemnification hereunder. The Seller shall have no obligation to undertake any Remedial Action, or provide indemnification with respect thereto, unless, and then only to the extent that, Remedial Action is required by Environmental Laws, based upon continued industrial use of, and the current physical configuration (i.e., the existing "footprint") of, the Facility. Additionally, the Seller shall have no obligation to undertake any Remedial Action, or provide indemnification with respect to any Seller Environmental Liability, in respect of any matter which is identified through environmental sampling and analysis conducted, or reports to Governmental Authorities occurring, after the Closing Date, unless such sampling and analysis, or such reporting, is required by Environmental Laws. The Buyer agrees, upon request by the Seller, in connection with any Remedial Action conducted hereunder, to accept and facilitate imposition of a deed restriction or other equitable relief against institutional controls on the Indemnified Party which, if successful, could subject facility; provided that such deed restriction does not materially interfere with restrict or impair the business, operations, assets, condition (financial or otherwise) or prospects -------- industrial activities conducted by the Buyer at the subject facility. Any obligation of the Indemnified PartySeller to conduct any Remedial Action, or provide indemnification with respect thereto, shall be deemed satisfied upon completion of a Remedial Action in a manner that attains minimum clean-up standards (including risk-based standards as applicable) acceptable to applicable Governmental Authorities and satisfying applicable Environmental Laws. The Parties agree to reasonably cooperate with one another in connection with any matter governed hereunder and to generally conduct themselves in a cost effective manner with respect thereto.
(c) The Parties shall retain all of the books and records in their respective possession that pertain to a pending claim for indemnification until such claims is finally resolved by a final, nonappealable order of a court of competent jurisdiction or by the entry by the Parties into a settlement agreement.
Appears in 1 contract
Procedures. If (ia) A party seeking indemnification (the “Indemnified Party”) in respect of, arising out of or involving a Loss or a claim or demand made by any Stockholder Event of Breach occurs or is alleged and a UAG Person against the Indemnified Party asserts that the Stockholder have become obligated to (a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," ”) shall deliver notice (a “Claim Notice”) in each case as respect thereof to the context so requires), party against whom indemnity is sought (the “Indemnifying Party”) with reasonable promptness after receipt by such Indemnified Party shall give written of notice to of the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each and shall provide the Indemnifying PartyParty with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to deliver a Claim Notice, jointly and severallyhowever, agrees shall not release the Indemnifying Party from any of its obligations under this Article IX except to defend, contest or otherwise protect the extent that the Indemnifying Party is materially prejudiced by such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified failure.
(b) The Indemnifying Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party upon written notice to the extent reasonably possible. If Indemnified Party within 15 days of receipt of a Claim Notice from the Indemnifying Indemnified Party fails timely to defend, contest or otherwise protect against in respect of such Third Party Claim, such to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim for equitable or injunctive relief or any claim that would impose criminal liability or damages, and the Indemnified Party shall have the right to do sodefend, including, without limitation, at the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from expense of the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of any such Third Party Claim. Failure 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 failed to notify such Indemnified assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof the time period and otherwise in accordance with the first sentence of this Section 9.5(b), the Indemnified Party shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their sole right to defend assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the particular Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall not, in without the defense prior written consent of such Third Party Claimthe Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment or enter into any settlement, except with the written consent of respect to such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim if such settlement, compromise or judgment (except with the written consent i) involves a finding or admission of such Indemnified Partywrongdoing, (ii) which does not include as an unconditional term thereof the giving written release by the claimant or plaintiff of the plaintiff to such Indemnified Party a full release from all liability Liability in respect of such Third Party Claim or (iii) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder.
(c) An Indemnified Party seeking indemnification in respect of, arising out of or involving a Loss or a claim or demand hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim”) shall deliver a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such Direct Claim, and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. Notwithstanding The failure to deliver a Claim Notice, however, shall not release the foregoingIndemnifying Party from any of its obligations under this Article IX except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or Liability that it may have to the Indemnified Party or otherwise than pursuant to this Article IX. If the Indemnifying Party does not notify the Indemnified Party within 10 days following its receipt of a Claim Notice in respect of a Direct Claim that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such Direct Claim specified by the Indemnified Party in such Claim Notice shall be conclusively deemed a Liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such Liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
(d) The Escrow Agent (to the extent of any amounts then held in the Escrow Fund if applicable) or the Indemnifying Party (to the extent of any amounts not then held in the Escrow Fund if applicable) shall promptly make any payment for indemnification hereunder in the amount of actual Losses in connection therewith, as and when bills are received by the Indemnifying Party or Losses incurred have been notified to the Indemnifying Party, together with interest (at the rate of interest described in Section 2.6(g)) on any amount not repaid as necessary to the Indemnified Party, within five Business Days after receipt of notice of such Losses.
(e) The Indemnifying Party shall not be entitled to control (but shall require that any action be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense made or settlement of brought against any Third Party Claim to the extent the Third Party Claim seeks an order, injunction other Person before action is brought or other equitable relief claim is made against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of it hereunder by the Indemnified Party.
(f) Notwithstanding the provisions of Section 11.9, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere.
Appears in 1 contract
Procedures. If (ia) In case any Stockholder Event of Breach occurs claim is made by a third party, or any suit or action is alleged and commenced by a UAG third party, against a Bank Indemnified Party asserts that or Company Indemnified Party, the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result party in * 79 respect of which indemnification may be sought under this ARTICLE XVI (including for the Stockholder may become obligated to a UAG Indemnified Party hereunderbenefit of its officers, directors or employees claiming by or through any of them) (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "the “Indemnified Party" and UAG ”) shall promptly give the other party (the “Indemnifying Party”) written notice thereof and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give be entitled to participate in the defense thereof and, with prior written notice to the Indemnified Party given not later than twenty (20) days after the delivery of the applicable notice, to assume, at the Indemnifying Party’s expense, the defense thereof, with counsel reasonably satisfactory to such Indemnified Party. After notice from the Indemnifying Party to such Indemnified Party of its or his obligation election so to provide indemnification hereunderassume the defense thereof, provided that any failure to so notify except as specified in Section 16.3(b), the Indemnifying Party shall will not relieve them from any liability that it or he may have be liable to the such Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest Section for any attorneys’ fees or otherwise protect other expenses subsequently incurred by such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in connection with the defense thereof by counsel other than reasonable costs of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such investigation.
(b) The Indemnified Party shall have the right to do soemploy its own counsel if the Indemnifying Party elects to assume such defense, including, without limitation, but the right to make any compromise or settlement thereof, fees and expenses of such Indemnified Party counsel shall be entitled to recover at the entire Cost thereof from Indemnified Party’s expense, unless (i) the employment of such counsel has been authorized in writing by the Indemnifying Party, including(ii) the Indemnifying Party has not employed counsel to take charge of the defense within twenty (20) days after delivery of the applicable notice or, without limitationhaving elected to assume such defense, attorneys' feesthereafter ceases its defense of such action, disbursements and amounts paid or (or of which iii) the Indemnified Party’s counsel has advised such Indemnified Party has become obligated to pay) as that the result third party claim involves potential conflicts of interest that make representation of both the Indemnified Party and the Indemnifying Party inappropriate, in which event attorney’s fees of the Indemnified Party in defense of such Third Party Claim. Failure claims shall be borne by the Indemnifying Party.
(c) The Indemnifying Party to shall promptly notify such the Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to if the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its desires not to assume, or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the any such claim, suit or action.
(d) The Indemnified Party shall be entitled or Indemnifying Party may at any time notify the other of its intention to have sole control oversettle or compromise any claim, the defense suit or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief action against the Indemnified Party whichin respect of which payments may be sought by the Indemnified Party hereunder, if successfuland (i) the Indemnifying Party may settle or compromise any such claim, could materially interfere with suit or action solely for the businesspayment of money damages, operations, assets, condition (financial but shall not agree to any other settlement or otherwise) or prospects compromise without the prior consent of the Indemnified Party, which consent shall not be unreasonably withheld (it being agreed that any failure of any Indemnified Party to consent to any settlement or compromise involving the imposition of nonmonetary remedies on the Indemnified Parties shall not be deemed to be unreasonably withheld), and (ii) the Indemnified Party may settle or compromise any such claim, suit or action solely for an amount not exceeding one thousand dollars ($1,000), but shall not settle or compromise any other matter without the prior consent of the Indemnifying Party, which consent shall not be unreasonably withheld.
Appears in 1 contract
Sources: Credit Card Program Agreement
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Buyer shall notify the Indemnifying Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (iiwith reasonable detail) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder promptly (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," but in each case as the context so requires)within 10 business days) after it becomes aware of facts supporting a claim or action for indemnification under this Article VIII, such Indemnified Party and shall give written notice provide to the Indemnifying Party of its as soon as practicable thereafter all reasonable available information and documentation necessary to support and verify any Losses associated with such claim or his obligation action. Subject to provide indemnification hereunderSection 8.2(c)(iv), provided that any the failure to so notify or provide information to the Indemnifying Party shall not relieve them from the Indemnifying Party of any liability that it or he may have to Buyer, except to the Indemnified extent that the Indemnifying Party under this ARTICLE 9demonstrates that it has been materially prejudiced by Buyer’s failure to give such notice, in which case the Indemnifying Party shall be relieved from its obligations hereunder to the extent of such material prejudice. If such notice relates to a Third The Indemnifying Party Claim, each Indemnifying Party, jointly shall participate in and severally, agrees to defend, contest or otherwise protect such Indemnified Party Buyer against any such Third Party Claim claim or action by counsel of the Indemnifying Party’s choice at his or its sole cost and expense; provided, however, that the Indemnifying Party shall not make any settlement or compromise without the prior written consent of Buyer (which consent shall not be unreasonably withheld or delayed) unless the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, there is no admission or statement of fault or culpability on the part of Buyer and there is an unconditional release of Buyer from all liability on any claims that are the subject of such claim or action. Such Indemnified Party Buyer shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's Buyer’s choice and shall in any event use its commercially reasonable efforts to cooperate with and assist the Indemnifying Party; provided, however, that the Indemnifying Party shall pay the fees and expenses of separate counsel for Buyer if (i) the Indemnifying Party has agreed to pay such fees and expenses or (ii) counsel for the extent Indemnifying Party reasonably possibledetermines that representation of both the Indemnifying Party and Buyer by the same counsel would create a conflict of interest. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claimsuit, such Indemnified Party action, investigation, claim or proceeding, Buyer shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party Buyer shall be entitled to recover the entire Cost cost thereof from the Indemnifying Party, including, without limitation, reasonable attorneys' ’ fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its suit, action, investigation, claim or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partyproceeding.
Appears in 1 contract
Sources: Securities Purchase Agreement (Enterprise GP Holdings L.P.)
Procedures. If (ia) A Person making a claim for indemnity under Section 8.02 is hereinafter referred to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” All claims by any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that under Section 8.02 hereof shall be asserted and resolved in accordance with the Stockholder have become obligated following provisions.
(b) In the event, from time to a UAG time, any Indemnified Party determines that it has suffered a loss for which indemnification is available pursuant to SECTION 9.1this Agreement, or if any Stockholder's Third Party Claim is begun, made or instituted other than as a result of a third-party claim (any such non-third-party claim, a “Loss”), the following procedure shall be followed:
(i) The Indemnified Party shall give written notice of any such claim (a “Loss Notice”) to the Indemnifying Party specifying in reasonable detail the amount of the claimed Loss (the “Loss Amount”), the basis for such Loss and, in the case of a Loss suffered by the Buyer, whether (at its sole option) the Buyer intends to offset the amount of its Loss against payments of cash or stock to become due the Seller pursuant to this Agreement.
(ii) Within twenty (20) days after delivery of a Loss Notice, the Indemnifying Party shall provide to the Indemnified Party, a written response (a “Response Notice”) in which the Stockholder may become obligated Indemnifying Party (i) agrees that it is responsible to a UAG indemnify the Indemnified Party hereunderfor the Loss Amount and, in the case of a claim for indemnification made by the Buyer for which it has elected to offset against payments of cash or stock, whether the Indemnifying Party agrees that an offset in the full Loss Amount may be made as elected by the Buyer or (ii) rejecting the indemnification claim because it does not constitute a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of Loss for which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder the Indemnified Party is sometimes referred entitled to as an "Indemnified Party" and UAG indemnification under this Agreement. If no Response Notice is delivered by the Indemnifying Party within such twenty (20) day period, the Indemnifying Party shall be deemed to have agreed that it is obligated for the entire Loss Amount.
(iii) If the Indemnifying Party is the Seller and the Stockholder Members, if the Indemnifying Parties agree (or are sometimes referred deemed to have agreed pursuant to clause (ii) above) that they are responsible for the Loss Amount, an offset may be made in an amount equal to the Loss Amount.
(iv) If the Indemnifying Party in the Response Notice contests its or their obligation to pay the Loss Amount, the parties shall negotiate in good faith to resolve any such dispute. If any such dispute cannot be resolved within thirty (30) days after the receipt by the Indemnified Party of the Response Notice, the Parties shall submit the matter to the American Arbitration Association (“AAA”) for binding arbitration to be conducted in Rochester, NY, in accordance with the AAA commercial arbitration rules in effect at the time such matter is submitted. If any such matter is submitted to the AAA as provided herein, (A) each of the Parties will furnish to AAA such workpapers and other documents and information as AAA may request and will be afforded the opportunity to present to AAA any material relevant to the matter, (B) the determination by AAA, as set forth in a notice delivered to the Parties, will be binding and conclusive on all parties.
(v) In connection with any such commercial arbitration, the following rules also shall apply: (A) any party shall have the right to have counsel represent such party at the arbitration hearing and in pre-arbitration proceedings; (B) all parties shall be permitted to conduct discovery in accordance with the Federal Rules of Civil Procedure; (C) the arbitrator(s) shall have the authority to resolve any discovery disputes and to invoke an "action to cease further discovery; (D) each party to any arbitration proceeding shall have the right to a written transcript made of the arbitration proceedings; (E) each party shall have the right to file post-arbitration briefs, which shall be considered by the arbitrator(s); and (F) each party shall bear its own costs and expenses and attorney’s fees in connection with such arbitration.
(vi) The exercise of any right of offset by Buyer in good faith, whether or not ultimately determined to be justified, will not constitute a breach of this Agreement. Neither the exercise of nor the failure to exercise such right of offset or reimbursement will constitute an election of remedies or limit Buyer in any manner in the enforcement of any other remedies available to Buyer except as otherwise expressly set forth in this Agreement.
(vii) For purposes of satisfying the indemnification obligations under this Section 8.03(b), the value of each share of Stock shall be equal to the closing price of the Buyer’s Common Stock on the trading day immediately preceding the date upon which such indemnification obligations are satisfied.
(c) If any claim or demand for which an Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third would be liable to an Indemnified Party Claim is sometimes referred asserted against or sought to as be collected from such Indemnified Party by a "third party (an “Indemnifiable Third Party Claim," in each case as the context so requires”), such Indemnified Party shall with reasonable promptness notify in writing the Indemnifying Party of such claim or demand stating with reasonable specificity the circumstances of the Indemnified Party’s claim for indemnification; provided, however, that any failure to give written such notice will not waive any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually prejudiced or to the extent that any applicable period set forth in Section 8.01 has expired without such notice being given. After receipt by the Indemnifying Party of such notice, then upon reasonable notice from the Indemnifying Party to the Indemnified Party, or upon the request of the Indemnified Party, the Indemnifying Party shall defend, manage and conduct any proceedings, negotiations or communications involving any claimant whose claim is the subject of the Indemnified Party’s notice to the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If as set forth above if such notice relates to a claim is an Indemnifiable Third Party Claim, each and shall take all actions necessary, including the posting of such bond or other security as may be required by any Governmental Authority, so as to enable the Indemnifiable Third Party Claim to be defended against or resolved without expense or other action by the Indemnified Party. Upon request of the Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such the Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligationshall, to participate at its own expense the extent it may legally do so and to the extent that it is compensated in advance by the defense thereof by counsel of Indemnifying Party for any costs and expenses thereby incurred,
(i) take such Indemnified Party's choice and shall action as the Indemnifying Party may reasonably request in any event cooperate connection with and assist such action,
(ii) allow the Indemnifying Party to dispute such action in the extent reasonably possible. If name of the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have and to conduct a defense to such action on behalf of the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid or
(or of which such Indemnified Party has become obligated to payiii) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given render to the Indemnifying Party shall be deemed a waiver by all such assistance as the Indemnifying Party of its or their right to defend may reasonably request in connection with such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), dispute and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partydefense.
Appears in 1 contract
Sources: Asset Purchase Agreement (Veramark Technologies Inc)
Procedures. If Promptly after receipt by a Person entitled to indemnification under subsection (ia) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (iib) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and ) of notice of any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as pending or threatened claim against it (a "Third Party Claim," in each case as the context so requires"), such Indemnified Party shall give prompt written notice (including copies of all papers served with respect to such claim) to the party to whom the Indemnified Party is entitled to look for indemnification (the "Indemnifying Party") of the commencement thereof, which notice shall describe in reasonable detail the nature of the Third Party Claim, an estimate of its or his obligation the amount of damages attributable to provide the Third Party Claim to the extent feasible and the basis of the Indemnified Party's request for indemnification hereunder, under this Agreement; provided that any the failure to so notify the Indemnifying Party shall not relieve them from the Indemnifying Party of any liability that it or he may have to any Indemnified Party except to the extent the Indemnifying Party demonstrates that it is prejudiced thereby. In case any Claim that is subject to indemnification under subsection (a) shall be brought against an Indemnified Party and it shall give notice to the Indemnifying Party of the commencement thereof, the Indemnifying Party may, and at the request of the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claimshall, each Indemnifying Party, jointly participate in and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such control the defense of the Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by with counsel of such its choice reasonably satisfactory to the Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such The Indemnified Party shall have the right to do soemploy separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment thereof has been specifically authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party failed to assume the defense and employ counsel or failed to diligently prosecute or settle the Third Party Claim or (iii) there shall exist or develop a conflict that would ethically prohibit counsel to the Indemnifying Party from representing the Indemnified Party. If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, including, without limitation, by making any counterclaim against the right Person asserting the Third Party Claim or any cross-complaint against any Person, in each case only if and to make the extent that any such counterclaim or cross-complaint arises from the same actions or facts giving rise to the Third Party Claim. The Indemnifying Party shall be the sole judge of the acceptability of any compromise or settlement thereofof any claim, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (litigation or proceeding in respect of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by indemnity may be sought hereunder, provided that the Indemnifying Party to notify such will give the Indemnified Party reasonable prior written notice of its or their election to defend any such proposed settlement or compromise and will not consent to the entry of any judgment or enter into any settlement with respect to any Third Party Claim without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld. The Indemnifying Party (if the Indemnified Party is entitled to indemnification hereunder) shall reimburse the Indemnified Party for its reasonable out of pocket costs incurred with respect to such cooperation. If the Indemnifying Party fails to assume the defense of a Third Party Claim within fifteen (15) days a reasonable period after receipt of written notice thereof shall have been given pursuant to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party first sentence of its this subparagraph (c), or their right to defend such Third Party Claim. If if the Indemnifying Party assumes the defense of the particular Indemnified Party pursuant to this subparagraph (c) but fails diligently to prosecute or settle the Third Party Claim, then the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification hereunder), the Third Party Claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Party to a final conclusion or settled. The Indemnified Party shall have full control of such defense and proceedings; provided that the Indemnified Party shall not settle such Third Party Claim without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section, and the Indemnifying Party shall notbear its own costs and expenses with respect to such participation. Notwithstanding the other provisions of this Section 13.2, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, if the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with disputes its potential liability to the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability under this Section 13.2 and if such dispute is resolved in respect favor of such Third Party Claim. Notwithstanding the foregoingIndemnifying Party, the Indemnifying Party shall not be entitled required to control (but shall be entitled bear the costs and expenses of the Indemnified Party's defense pursuant to participate this Section 13.2 or of the Indemnifying Party's participation therein at their own expense in the defense of)Indemnified Party's request, and the Indemnified Party shall be entitled to have sole control over, reimburse the defense or settlement Indemnifying Party in full for all costs and expenses of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects litigation concerning such dispute. If a dispute over potential liability is resolved in favor of the Indemnified Party, the Indemnifying Party shall reimburse the Indemnified Party in full for all costs of the litigation concerning such dispute.
Appears in 1 contract
Procedures. If (ia) any Stockholder Event of Breach occurs In order for a Securityholder Party or is alleged and a UAG Purchaser Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and ") to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a Loss or a claim or demand made by any Person against the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Indemnified Party Claim and any Stockholder Third Party Claim is sometimes referred to as (a "Third Party Claim," in each case as the context so requires"), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the "Indemnifying Party") with reasonable promptness after receipt by such Indemnified Party of written notice of the Third Party Claim and shall provide the Indemnifying party with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article IX except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party pursuant to this Article IX.
(b) If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against the entirety of any Losses (subject to any rights to recovery or offset pursuant to Sections 9.3, 9.5 or 9.10) that may result from a Third Party Claim pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within fifteen (15) Business Days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 9.6(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim; provided, however, that the Indemnified Party (i) shall keep the Indemnifying Party reasonably apprised of material developments in any matter for which indemnification may be sought, (ii) shall give written notice to the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify pending settlement discussions and afford the Indemnifying Party a commercially reasonable opportunity to comment on any such pending settlement (provided that the Indemnified Party will not be required to obtain the consent of the Indemnifying Party to any such settlement) and (iii) shall not relieve them from any liability that it or he may have allow the Indemnifying Party to monitor such action at its discretion and at its sole expense. The Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claimall witnesses, each Indemnifying Partypertinent records, jointly materials and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense information in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid ('s possession or of which such Indemnified Party has become obligated to pay) under the Indemnifying Party's control relating thereto as the result of such Third Party Claim. Failure is reasonably required by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party ClaimParty. If the Indemnifying Party assumes the defense of such Third Party Claim, the particular Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall, at the Indemnifying Party's expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party's possession or under the Indemnified Party's control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall notnot admit any liability with respect to, in the defense of or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party ClaimClaim without the Indemnified Party's prior written consent (which shall not be unreasonably delayed or withheld); provided, however, that the Indemnified Party's consent to entry of any judgment or enter into shall not be required for any settlement, except with the written consent compromise or discharge of such Indemnified Party. In addition, a Third Party Claim that the Indemnifying Party shall not enter into any settlement may recommend and that by its terms requires that the Indemnifying Party pay the full amount of any the liability in connection therewith, that otherwise releases the Indemnified Party completely and with prejudice in connection with such Third Party Claim (except with and that would not subject the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third to any injunctive or other equitable relief (it being understood that the Indemnified Party Claim. Notwithstanding shall have the foregoingsole discretion to determine whether to consent to any settlement, compromise or discharge that would subject the Indemnified Party to any injunctive or other equitable relief).
(c) The Indemnifying Party shall not be entitled to control (but shall require that any action be entitled to participate at their own expense in asserted or brought against any other Person before action is brought or claim is made against it hereunder by the defense of)Indemnified Party, and the Significant Stockholders shall have no right to, and shall not, object to or protest the handling by a Purchaser Indemnified Party shall be entitled to have sole control over, the defense or settlement of any such claim or deny or dispute any claim for indemnification brought by the Purchaser Indemnified Parties under this Article IX on the basis of the assertion, prosecution or handling by a Purchaser Indemnified Party of any claim by Purchaser Indemnified Party against any such other Person. The Purchaser will, and will use its commercially reasonable efforts to cause the Purchaser Indemnified Parties to, and the Significant Stockholders will, reasonably cooperate, communicate and consult with each other with respect to any actions or claims brought against any other such third Person.
(d) In any action where the Purchaser Indemnified Parties or the Securityholder Parties reasonably determine that there are claims or defenses available to such parties that are different from or in addition to those available to the party defending such action, such parties shall have the right to select separate legal counsel, at their sole cost and expense, to assert such claims or defenses or to otherwise participate in such action.
(e) Notwithstanding the provisions of Section 11.4, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an action in respect of a Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief is brought against the any Indemnified Party which, if successful, could materially interfere for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim in accordance with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partynotice provisions set forth in Section 11.3 hereof.
Appears in 1 contract
Procedures. If (ia) In case any Stockholder Event of Breach occurs claim is made by a third party, or any suit or action is alleged and commenced by a UAG third party, against a Bank Indemnified Party asserts that or Company Indemnified Party, the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result party in respect of which indemnification may be sought under this ARTICLE XVI (including for the Stockholder may become obligated to a UAG Indemnified Party hereunderbenefit of its officers, directors or employees claiming by or through any of them) (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "the “Indemnified Party" and UAG ”) shall promptly give the other party (the “Indemnifying Party”) written notice thereof and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give be entitled to participate in the defense thereof and, with prior written notice to the Indemnified Party given not later than twenty (20) days after the delivery of the applicable notice, to assume, at the Indemnifying Party’s expense, the defense thereof, with counsel reasonably satisfactory to such Indemnified Party. After notice from the Indemnifying Party to such Indemnified Party of its or his obligation election so to provide indemnification hereunderassume the defense thereof, provided that any failure to so notify except as specified in Section 16.3(b), the Indemnifying Party shall will not relieve them from any liability that it or he may have be liable to the such Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest Section for any attorneys’ fees or otherwise protect other expenses subsequently incurred by such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in connection with the defense thereof by counsel other than reasonable costs of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such investigation.
(b) The Indemnified Party shall have the right to do soemploy its own counsel if the Indemnifying Party elects to assume such defense, including, without limitation, but the right to make any compromise or settlement thereof, fees and expenses of such Indemnified Party counsel shall be entitled to recover at the entire Cost thereof from Indemnified Party’s expense, unless (i) the employment of such counsel has been authorized in writing by the Indemnifying Party, including(ii) the Indemnifying Party has not employed counsel to take charge of the defense within twenty (20) days after delivery of the applicable notice or, without limitationhaving elected to assume such defense, attorneys' feesthereafter ceases its defense of such action, disbursements and amounts paid or (or of which iii) the Indemnified Party’s counsel has advised such Indemnified Party has become obligated to pay) as that the result third party claim involves potential conflicts of interest that make representation of both the Indemnified Party and the Indemnifying Party inappropriate, in which event attorney’s fees of the Indemnified Party in defense of such Third Party Claim. Failure claims shall be borne by the Indemnifying Party.
(c) The Indemnifying Party to shall promptly notify such the Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to if the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its desires not to assume, or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the any such claim, suit or action.
(d) The Indemnified Party shall be entitled or Indemnifying Party may at any time notify the other of its intention to have sole control oversettle or compromise any claim, the defense suit or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief action against the Indemnified Party whichin respect of which payments may be sought by the Indemnified Party hereunder, if successfuland (i) the Indemnifying Party may settle or compromise any such claim, could materially interfere with suit or action solely for the businesspayment of money damages, operations, assets, condition (financial but shall not agree to any other settlement or otherwise) or prospects compromise without the prior consent of the Indemnified Party, which consent shall not be unreasonably withheld (it being agreed that any failure of any Indemnified Party to consent to any settlement or compromise involving the imposition of nonmonetary remedies on the Indemnified Parties shall not be deemed to be unreasonably withheld), and (ii) the Indemnified Party may settle or compromise any such claim, suit or action solely for an amount not exceeding one thousand dollars ($1,000), but shall not settle or compromise any other matter without the prior consent of the Indemnifying Party, which consent shall not be unreasonably withheld.
Appears in 1 contract
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party A party seeking indemnification pursuant to SECTION 9.1, Sections 7.2 or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or 7.3 (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and ") shall give prompt notice to the Stockholder are sometimes referred to as an party from whom such indemnification is sought (the "Indemnifying Party," and ") of the assertion of any UAG Third Party Claim and claim or assessment, or the commencement of any Stockholder Third Party Claim is sometimes referred to as action, suit, audit or proceeding, by a third party in respect of which indemnity may be sought hereunder (a "Third Party Claim," in each case ") and will give the Indemnifying Party such information with respect thereto as the context so requires)Indemnifying Party may reasonably request, but no failure to give such Indemnified Party notice shall give written notice to relieve the Indemnifying Party of its or his obligation any liability hereunder (except to provide indemnification hereunder, provided that any failure to so notify the extent the Indemnifying Party shall not relieve them from any liability that it or he may have to has suffered actual prejudice thereby). Thereafter, the Indemnified Party under this ARTICLE 9. If such notice relates shall deliver to a the Indemnifying Party, within five (5) business days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim, each . The Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not exercisable by written notice (the obligation"Notice") to the Indemnified Party within thirty (30) days of receipt of notice from the Indemnified Party of the commencement or assertion of any Third Party Claim, to participate at its own expense in assume the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure using counsel selected by the Indemnifying Party and reasonably acceptable to notify such the Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to Party. Should the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right so elect to defend such Third Party Claim. If the Indemnifying Party assumes assume the defense of the particular a Third Party Claim, the Indemnifying Party shall notnot 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 shall fail to assume the defense of the Third Party Claim within such thirty (30) day period, in the Indemnified Party shall have the right to undertake the defense of such Third Party Claim on behalf of the Indemnifying Party. Regardless of whether the Indemnifying Party elects to assume the defense of any such Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge such Third Party Claim without the Indemnifying Party's prior written consent.
(b) The Indemnifying Party or the Indemnified Party, as the case may be, shall in any event have the right to participate, at its own expense, in the defense of any Third Party Claim which the other is defending.
(c) The Indemnifying Party, if it shall have assumed the defense of any Third Party Claim in accordance with the terms hereof, shall have the right, upon five (5) days prior written notice to the Indemnified Party, to consent to the entry of any judgment with respect to, or otherwise settle such Third Party Claim provided the Indemnifying Party agrees that as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge such judgment or enter into settlement unless (i) the Third Party Claim involves equitable or other non-monetary damages or (ii) in the reasonable judgment of the Indemnified Party such settlement would have a continuing material adverse effect on the Indemnified Party's business (including any settlementmaterial impairment of its relationships with customers and suppliers), except in which case such settlement only may be made with the written consent of such the Indemnified Party, which consent shall not be unreasonably withheld.
(d) Whether or not the Indemnifying Party chooses to defend or prosecute any claim involving a third party, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. In additionSuch cooperation shall include access during normal business hours afforded 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, and the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and reimburse the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partyfor all its reasonable out-of-pocket expenses in connection therewith.
Appears in 1 contract
Sources: Stock Purchase Agreement (O2wireless Solutions Inc)
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated A Person entitled to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or receive indemnification under this Article VIII (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "“Indemnified Party" and UAG and ”) from a Party (the Stockholder are sometimes referred to as an "“Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party ”) shall give written notice to the Indemnifying Party of its or his obligation any claim with respect to provide which it seeks indemnification hereunder, as promptly as reasonably practicable after the discovery by such Indemnified Party of any matters giving rise to a claim for indemnification; provided that the failure of any failure Indemnified Party to so notify give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Article VIII unless (and solely to the extent) that the Indemnifying Party shall not relieve them from any liability that it or he may have to been materially prejudiced by the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect failure of such Indemnified Party against any to so notify such Third Party Claim at his or its sole cost and expenseIndemnifying Party. Such Indemnified Party notice shall have describe in reasonable detail the right, but not the obligation, to participate at its own expense in the defense thereof by counsel nature of such Indemnified Party's choice claim, identify the Sections of this Agreement that form the basis of such claim, attach copies of all material written evidence thereof received from any third party to the date of such notice and shall in any event cooperate with and assist set forth the Indemnifying Party estimated amount of indemnifiable Losses relating thereto to the extent reasonably possible. estimable.
(b) If the Indemnifying Party fails timely to defend, contest or otherwise protect an Action is brought against such Third Party Claim, such an Indemnified Party shall have the right to do soby a third party, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver entitled to, by written notice to the Indemnified Party, assume control of, and conduct the defense of, such Action with counsel reasonably acceptable to the Indemnified Party and, in such case, shall not be liable for legal or other expenses incurred by the Indemnifying Indemnified Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in connection with the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with Action following the written consent assumption of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, defense; provided that the Indemnifying Party shall not be entitled permitted to control (but assume the defense of an Action, and shall be entitled required to participate at their own expense be liable for reasonable legal or other expenses incurred by the Indemnified Party in connection with the defense of such Action, in the defense of), and event (x) the Indemnified Party shall have reasonably concluded that there may be entitled legal defenses available to have sole control over, the defense it that are different from or settlement of any Third Party Claim in addition to those available to the extent the Third Indemnifying Party Claim seeks an order, injunction or other equitable relief against that there is otherwise a conflict of interest between the Indemnified Party which, if successful, could materially interfere with and the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party.Indemnifying Party or
Appears in 1 contract
Sources: Stock Purchase Agreement
Procedures. If (i) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have a Shareholder has become obligated to a UAG Indemnified Party pursuant to SECTION Section 9.1, or if any Stockholder's Shareholder Third Party Claim is begun, made or instituted as a result of which the Stockholder a Shareholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Shareholder Indemnified Party asserts that UAG has become obligated to a Stockholder Shareholder Indemnified Party pursuant to SECTION Section 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Shareholder Indemnified Party hereunder (for purposes of this ARTICLE Article 9, any UAG Indemnified Party and any Stockholder Shareholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder Shareholders are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Shareholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give written notice to the Indemnifying Indemni- fying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them such party from any liability that it or he may have to the Indemnified Party under this ARTICLE Article 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) Party which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party.
Appears in 1 contract
Procedures. If (ia) A party seeking indemnification (the “Indemnified Party”) in respect of, arising out of or involving a Loss or a claim or demand made by any Stockholder Event of Breach occurs or is alleged and person (other than a UAG party hereto) against the Indemnified Party asserts that the Stockholder have become obligated to (a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," ”) shall deliver notice (a “Claim Notice”) in each case respect thereof to the Stockholder Representative, on behalf of the Seller Indemnifying Parties, or to the Acquiror, as applicable (the context so requires), “Indemnifying Party”) with reasonable promptness after receipt by such Indemnified Party shall give written of notice to of the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each and shall provide the Indemnifying PartyParty with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to deliver a Claim Notice, jointly and severallyhowever, agrees shall not release the Indemnifying Party from any of its obligations under this Article VI except to defend, contest or otherwise protect the extent that the Indemnifying Party is materially prejudiced by such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified failure.
(b) The Indemnifying Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party upon written notice to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have within 15 days of receipt of a Claim Notice from the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim, to assume the defense thereof (except that the defense or prosecution of such claim shall be tendered to the insurance carrier of the R&W Insurance Policy if such carrier has assumed the defense thereof under the R&W Insurance Policy) at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in assume the defense of)of any claim (i) for equitable or injunctive relief, (ii) that would impose criminal liability or damages, (iii) that involves a material customer or supplier of the Indemnified Party or (iv) if the Indemnified Party reasonably determines that the Losses that it may incur arising from or related to any claim could reasonably be expected to exceed the General Cap or the Indemnification Cap, as applicable, and the Indemnified Party shall have the right to defend, at the expense of the Indemnifying Party, any such Third Party Claim. The Indemnifying Party shall be entitled liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 6.4(b), the Indemnified Party shall have the sole control over, right to assume the defense of and to settle such Third Party Claim (except that the defense or settlement prosecution of such claim shall be tendered to the insurance carrier of the R&W Insurance Policy if such carrier has assumed the defense thereof under the R&W Insurance Policy). If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim to the extent the Third Party Claim seeks an orderClaim, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere shall cooperate with the businessIndemnifying Party in such defense and make available to the Indemnifying Party all witnesses, operationspertinent records, assetsmaterials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, condition (financial or otherwise) or prospects the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or judgment (A) involves a finding or admission of wrongdoing, (B) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liability in respect of such Third Party Claim, (C) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder or (D) requires the consent of the carrier of the R&W Insurance Policy under the terms of the R&W Insurance Policy. If the Indemnified Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnified Party assumes the defense of, or otherwise has the right to control any Third Party Claim, the Indemnified Party shall not enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim without the prior written consent of the Indemnifying Party, such written consent not to be unreasonably withheld, conditioned or delayed.
(c) An Indemnified Party seeking indemnification in respect of, arising out of or involving a Loss or a claim or demand hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim”) shall deliver a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such Direct Claim, and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VI, provided, however, in all cases a Claim Notice must be delivered prior to the end of the respective survival period for such matter as set forth in Section 6.1. If the Indemnifying Party does not notify the Indemnified Party within 30 days following its receipt of a Claim Notice in respect of a Direct Claim that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such Direct Claim specified by the Indemnified Party in such Claim Notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
(d) The indemnification required hereunder (i) by a Seller Indemnifying Party shall be made by prompt payment by the Escrow Agent (to the extent of any amounts then held in the Indemnity Escrow Fund if applicable) or the Indemnifying Party (to the extent of any amounts not then held in the Indemnity Escrow Fund if applicable) of the amount of actual Losses in connection therewith, as and when bills are received by the Indemnifying Party or Losses incurred have been notified to the Indemnifying Party, within five Business Days after receipt of notice of such Losses, from the date such Losses have been notified to the Indemnifying Party and (ii) by an Acquiror Indemnifying Party shall be made by prompt payment by the Acquiror of the amount of actual Losses in connection therewith, as and when bills are received by the Indemnifying Party or Losses incurred have been notified to the Indemnifying Party, within five Business Days after receipt of notice of such Losses, from the date such Losses have been notified to the Indemnifying Party.
(e) The Indemnifying Party shall not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(f) Notwithstanding the provisions of Section 7.11, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere.
Appears in 1 contract
Procedures. If any demands or claims are asserted against a Person entitled to indemnification under Section 9.2 or Section 9.2(f) (ian “Indemnified Party”) or any Stockholder Event of Breach occurs actions, suits, or is alleged and a UAG proceedings are commenced against an Indemnified Party asserts that by a Person not a Party or an Affiliate of a Party for which a Party (the Stockholder have become “Indemnifying Party”) is obligated to a UAG indemnify such Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as (a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," in each case as the context so requires”), such the Indemnified Party shall will give written prompt notice to the Indemnifying Party in order to permit Indemnifying Party the necessary time to evaluate the merits of its or his obligation such Third Party Claim, but the failure of an Indemnified Party to provide indemnification hereunder, provided that any failure give prompt notice to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to affect the rights of the Indemnified Party under this ARTICLE 9. If to indemnification hereunder, except to the extent any such notice relates to a Third Party Claim, each failure materially prejudices the rights of the Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified . The Indemnifying Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall will have the right, but not the obligation, to participate assume the defense of any such claim at its own expense in with counsel reasonably satisfactory to the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist Party so long as the Indemnifying Party acknowledges in writing that the Indemnified Party is entitled to indemnification hereunder in respect of the extent reasonably possible. If Losses subject to such Third Party Claim and so long as the Indemnifying Party fails timely to defendnotifies the Indemnified Party in writing that it is assuming the defense of such claim within 20 days after receipt of notice of the claim from Indemnified Party, contest or otherwise protect against such Third Party Claim, such the Indemnified Party shall have the right to do sobe informed and consulted with respect to the negotiation, including, without limitation, the right to make any compromise settlement or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result defense of such Third Party Claim. Failure Claim and to retain counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid by the Indemnified Party; provided that if the Indemnifying Party assumes control of such defense and (i) the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party may have a conflict of interest or different defenses available with respect to such Proceeding that would make it inappropriate for the same counsel to represent both parties or (ii) the Indemnifying Party has not in fact employed counsel to assume control of such defense, the reasonable fees and expenses of counsel to the Indemnified Party (limited to one law firm in each applicable jurisdiction) shall be paid for by the Indemnifying Party Party. The party controlling such defense shall keep the other party advised of the status of such Proceeding and the defense thereof. Notwithstanding anything to notify such the contrary herein, Buyer as Indemnified Party shall have the full right to control the defense and settlement of its any Third Party Claim if: (1) the claim seeks anything other than monetary damages, including an injunction or their election other equitable relief; (2) the claim involves a claim by any Governmental Authority or a significant customer, supplier, dealer, distributor, sales representative or other business partner of the Cobalt Companies, or involves a criminal claim; (3) the amount reasonably necessary to defend any conclude the defense of such Third Party Claim within fifteen is in excess of (15or reasonably likely to exceed) days the remaining portion of the liability cap under Section 9.2(b) applicable to such claim after notice thereof shall have been given reduction of all Losses previously recovered by (or then being claimed pursuant to the Indemnifying Party shall be deemed a waiver unresolved claims) by the Indemnifying Party of its Buyer Parties that count (or their right would count) towards such cap (if a cap is applicable to defend such Third Party Claim. If claim); or (4) the Indemnifying Party assumes the defense of but fails to promptly defend the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party Assumption by Buyer of control of any such defense or settlement shall not be entitled deemed a waiver by it of its right to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partyindemnification hereunder.
Appears in 1 contract
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and a UAG Subject to Section 8.2(b) below, if an Indemnified Party asserts that the Stockholder have become obligated shall claim a right to a UAG Indemnified Party payment pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires)Article 8, such Indemnified Party shall give send written notice of such claim to the Indemnifying Party. Such notice shall specify the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation, arbitration or otherwise) and, within five business days of the final determination of the merits and amount of such claim, the Indemnifying Party shall pay to the Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder.
(b) Promptly after receipt by an Indemnified Party of its notice by a third party of any complaint or his obligation the commencement of any action or proceeding with respect to provide indemnification hereunderwhich such Indemnified Party may be entitled to receive payment from the other party for any Losses, provided such Indemnified Party shall notify the Indemnifying Party within 20 days of such complaint or of the commencement of such action or proceeding; provided, however, that any the failure to so notify the Indemnifying Party shall not relieve them the Indemnifying Party from any liability that it or he may have under this Alliance Agreement with respect to such claim only if, and only to the Indemnified extent that, such failure results in the forfeiture by the Indemnifying Party under this ARTICLE 9of rights and defenses otherwise available to the Indemnifying Party with respect to such claim. If such notice relates to a Third Party Claim, each The Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not upon written notice delivered to the obligation, to participate at its own expense in the defense thereof by counsel Indemnified Party within 30 days thereafter (which written notice must include a binding acknowledgment of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party that such claim constitutes an indemnifiable Loss hereunder), to assume the defense of such action, including the employment of counsel reasonably satisfactory to the extent reasonably possibleIndemnified Party and the payment of the fees and disbursements of such counsel. If the Indemnifying Party fails timely declines to defendassume the defense of the action within such 30-day period, contest or otherwise protect against such Third Party Claim, then such Indemnified Party shall have the right may employ counsel to do so, including, without limitation, the right to make any compromise represent or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend it in any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to action and the Indemnifying Party shall be deemed a waiver by pay the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense reasonable fees and disbursements of such Third Party Claimcounsel as incurred; provided, consent to entry of any judgment or enter into any settlementhowever, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, that the Indemnifying Party shall not be entitled required to control (but shall be entitled pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action with respect to participate at their own expense in the defense of)which indemnification is being sought hereunder, and the Indemnified Party shall be entitled to have sole control overor the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such action.
Appears in 1 contract
Sources: Strategic Alliance Agreement (Rollins Truck Leasing Corp)
Procedures. If any party (ithe "Indemnitee") receives notice of any Stockholder Event claim or the commencement of Breach occurs any action or proceeding with respect to which the other party (or parties) is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which provide indemnification (the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred ") pursuant to as a "Third Party Claim," in each case as Sections 9.01 or 9.02, the context so requires), such Indemnified Party Indemnitee shall give written notice to the Indemnifying Party written notice thereof within a reasonable period of its time following the Indemnitee's receipt of such notice. Such notice shall describe the claim in reasonable detail and shall indicate the amount (estimated if necessary) of the Losses that have been or his obligation to provide indemnification hereunder, provided that any failure to so notify may be sustained by the Indemnitee. The Indemnifying Party shall not relieve them from any liability that it or he may have may, subject to the Indemnified Party under other provisions of this ARTICLE 9. If Section 9.03, compromise or defend, at such notice relates to a Third Party Claim, each Indemnifying Party's own expense and by such Indemnifying Party's own counsel, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have matter involving the right, but not asserted Liabilities of the obligation, to participate at its own expense Indemnitee in the defense thereof by counsel respect of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possiblea third-party claim. If the Indemnifying Party fails timely elects to defendcompromise or defend such asserted Liabilities, contest it shall within thirty (30) days (or otherwise protect against such Third Party Claimsooner, if the nature of the asserted Liabilities so requires) notify the Indemnitee of its intent to do so, and the Indemnitee, shall reasonably cooperate, at the request and reasonable expense of the Indemnifying Party, in the compromise of, or defense against, such Indemnified asserted Liabilities. The Indemnifying Party will not be released from any obligation to indemnify the Indemnitee hereunder with respect to a claim without the prior written consent of the Indemnitee, unless the Indemnifying Party delivers to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to or injunctive relief against the Indemnitee and a complete release of the Indemnitee with respect thereto. The Indemnifying Party shall have the right to do soconduct and control the defense of any third-party claim made for which it has been provided notice hereunder, includingother than a third-party claim with respect to breach of a representation or warranty contained in Section 3.15, without limitationwhich shall be conducted and controlled by the Company, provided, that the Company shall act reasonably and in good faith in the conduct and control thereof and shall consult with the Indemnifying Parties with respect thereto. All costs and fees incurred with respect to any such claim will be borne by the Indemnifying Party. The Indemnitee will have the right to make any compromise or settlement thereofparticipate, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Partybut not control, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of at its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control overexpense, the defense or settlement of any Third such claim; provided, that if the Indemnitee and the Indemnifying Party Claim shall have conflicting claims or defenses, the Indemnifying Party shall not have control of such conflicting claims or defenses and the Indemnitee shall be entitled to appoint a separate counsel for such claims and defenses at the cost and expense of the Indemnifying Party. If the Indemnifying Party chooses to defend any claim, the Indemnitee shall make available to the extent the Third Indemnifying Party Claim seeks an orderany books, injunction records or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partydocuments within its control that are reasonably required for such defense.
Appears in 1 contract
Procedures. If a party hereto seeks indemnification under this Section 8.2, such party (i) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "“Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party ”) shall give written notice to the other party (the “Indemnifying Party”) of the facts and circumstances giving rise to the claim. In that regard, if any suit, action, claim, liability or obligation is brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party of its or his obligation to provide indemnification hereunderindemnity pursuant to this Section 8.2, provided that any failure to so the Indemnified Party shall promptly notify the Indemnifying Party shall of the same in writing, specifying in reasonable detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party, if it so elects (except that the Indemnifying Party may not relieve them from any liability that it or he may have so elect without the Indemnified Party’s consent unless (i) the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party to the extent required under this ARTICLE VIII, (ii) the Indemnifying Party provides reasonable evidence to the Indemnified Party of its financial ability to satisfy its indemnification obligations, (iii) the suit, action, claim, liability or obligation does not seek to impose any liability or obligation upon the Indemnified Party other than for money damages, (iv) such suit, claim or action involves aggregate Losses that are reasonably expected to be less than the maximum amount for which such Indemnifying Party could be liable under this ARTICLE 9. If VIII and (v) such notice relates suit, action, claim, liability or obligation does not relate to a Third Party Claimthe Indemnified Party’s relationship with its customers, each Indemnifying Party, jointly suppliers or employees) shall assume and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in control the defense thereof by counsel of such Indemnified Party's choice (and shall in any event cooperate consult with and assist the Indemnifying Indemnified Party with respect thereto), including the employment of counsel reasonably satisfactory to the extent reasonably possibleIndemnified Party and the payment of expenses. If the Indemnifying Party fails timely elects to defendassume and control the defense, contest or otherwise protect against such Third Party Claim, such the Indemnified Party shall have the right to do so, including, without limitation, employ counsel separate from counsel employed by the right Indemnifying Party in any such action and to make any compromise or settlement participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be entitled to recover at the entire Cost thereof from expense of the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party unless (y) the employment thereof has become obligated to pay) as the result of such Third Party Claim. Failure been specifically authorized by the Indemnifying Party to notify such Indemnified Party of its in writing or their election to defend any such Third Party Claim within fifteen (15z) days after notice thereof shall have been given to the Indemnifying Party has failed to assume the defense and employ counsel. The Indemnifying Party shall not be liable for any settlement of any action or proceeding, the defense of which it has elected to assume, which settlement is effected without the written consent of the Indemnifying Party. If there shall be deemed a waiver by settlement to which the Indemnifying Party of its consents or their right to defend such Third Party Claim. If a final judgment for the Indemnifying Party assumes the defense of the particular Third Party Claimplaintiff in any action or proceeding, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), indemnify and hold harmless the Indemnified Party shall be entitled to have sole control over, the defense from and against any Loss by reason of such settlement or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere judgment in accordance with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partythis ARTICLE VIII.
Appears in 1 contract
Sources: Stock Purchase Agreement (Roadrunner Transportation Services Holdings, Inc.)
Procedures. Claims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) If any Person who or which is entitled to seek indemnification under 0 (an “Indemnified Party”) receives notice of the assertion or commencement of any claim asserted against an Indemnified Party by a third party (“Third Party Claim”) in respect of any matter that is subject to indemnification under 0, the Indemnified Party shall promptly:
(i) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified notify the Party asserts that the Stockholder have become obligated to a UAG the Indemnified Party pursuant to SECTION 9.10 above (the “Indemnifying Party”) of the Third Party Claim; and
(ii) transmit to the Indemnifying Party a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, or a copy of all papers served with respect to such claim (if any Stockholder's any), the Indemnified Party’s best estimate of the amount of Losses attributable to the Third Party Claim and the basis of the Indemnified Party’s request for indemnification under this Agreement. Failure to timely provide such Claim Notice shall not affect the right of the Indemnified Party’s indemnification hereunder, except to the extent the Indemnifying Party is begun, made materially prejudiced by such delay or instituted as a result of which omission.
(b) The Indemnifying Party may elect to defend the Stockholder may become obligated to a UAG Indemnified Party hereunderagainst such Third Party Claim; except that if Seller is the Indemnifying Party, then Seller shall not have the right to defend or direct the defense of any such Third Party Claim that (i) is asserted directly or by or on behalf of a Person that is a supplier or a customer of an Acquired Company, or (ii) a UAG Event of Breach occurs seeks an injunction or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if other equity relief against any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Buyer Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give written notice to the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely notifies the Indemnified Party that the Indemnifying Party elects to defend, contest or otherwise protect against such assume the defense of the Third Party Claim, such Indemnified then the Indemnifying Party shall have the right to do sodefend such Third Party Claim with counsel selected by the Indemnifying Party (who shall be reasonably satisfactory to the Indemnified Party), includingby all appropriate proceedings, without limitationto a final conclusion or settlement at the discretion of the Indemnifying Party in accordance with this 0. The Indemnifying Party shall have full control of such defense and proceedings, the right to make including any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, ; provided that the Indemnifying Party shall not enter into any settlement agreement or consent to the entry of judgment without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed); provided, further, that such consent shall not be required if:
(i) the settlement agreement contains a complete and unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such proceeding; and
(ii) the settlement agreement does not contain any consideration other than the payment of money which the Indemnifying Party agrees to pay. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to reasonably cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled elects to control (but shall be entitled to participate at their own expense in contest, including the defense of), and making of any related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person. The Indemnified Party shall be entitled to have sole control overmay participate in, the but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this 0, and the extent Indemnified Party shall bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party shall have the right, exercisable in its sole discretion, to assume control of the defense of any Third Party Claim if (i) the Indemnifying Party advises such Indemnified Party in writing that the Indemnifying Party does not elect to defend, settle or compromise such Claim, or (ii) the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after receipt of the Claim Notice that the Indemnifying Party elects to undertake the defense thereof on behalf of and for the account and risk, and at the expense, of the Indemnifying Party.
(c) If the Indemnifying Party does not notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to 0, then the Indemnified Party shall have the right to defend, and be reimbursed for its reasonable cost and expense (but only if the Indemnified Party is actually entitled to indemnification hereunder) in regard to the Third Party Claim seeks an orderwith counsel selected by the Indemnified Party, injunction or other equitable relief against by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party. In such circumstances, the Indemnified Party whichshall defend any such Third Party Claim in good faith and have full control of such defense and proceedings; provided, however, that the Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if successfulindemnification is to be sought hereunder, could materially interfere without the Indemnifying Party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this 0, and the Indemnifying Party shall bear its own costs and expenses with respect to such participation.
(d) Any claim by an Indemnified Party on account of Losses that does not result from a Third Party Claim (a “Direct Claim”) will be asserted by giving the businessIndemnifying Party reasonably prompt written notice thereof, operationsbut in any event not later than thirty (30) days after the Indemnified Party becomes aware of the events that gave rise to such Direct Claim; provided, assets, condition (financial or otherwise) or prospects of that failure to provide timely notice shall not affect the Indemnified Party’s indemnification hereunder, except to the extent that the Indemnifying Party is materially prejudiced by such delay or omission. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail and will indicate the estimated amount, if reasonably practicable, of Losses that has been or may be sustained by the Indemnified Party. The Indemnifying Party will have a period of five (5) Business Days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such five (5) Business Day period, the Indemnifying Party will be deemed to have rejected such claim, in which event the Indemnified Party will be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Avangrid, Inc.)
Procedures. If any Party (i) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and ") shall discover or have actual notice of matter for which the Stockholder are sometimes referred to as an other Party (the "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim ") is sometimes referred to as liable under this Article XXIII (each a "Third Party Claim," in each case as the context so requires"), such the Indemnified Party shall give written notice to shall, within five (5) days, notify the Indemnifying Party in writing thereof together with a statement of its or his obligation to provide indemnification hereundersuch information respecting such matter as the Indemnified Party then has; provided, provided that any however, the failure to so notify the Indemnifying Party shall not relieve them the Indemnifying Party from any liability that it or he may have to the Indemnified Party under this ARTICLE 9except and solely to the extent that such failure or delay in notification shall have adversely affected the Indemnifying Party's ability to defend against, settle or satisfy any such Claim. The Indemnifying Party shall be entitled, at its cost and expense, to appoint counsel (“Defense Counsel”) to defend any such Claim by all appropriate legal proceedings provided the Indemnifying Party shall have first notified the Indemnified Party of the Indemnifying Party's intention to do so within twenty (20) days after the Indemnifying Party's receipt of such notice from the Indemnified Party. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such the Indemnified Party against elects to join in any such Third Party defense of a Claim (which shall be at his or its the Indemnified Party’s sole cost and expense. Such Indemnified ), the Indemnifying Party shall have the rightfull authority to determine all action to be taken with respect thereto. If, but not the obligationafter such opportunity, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party elects not to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against defend such Third Party Claim, such the Indemnified Party shall have the right to do soappoint Defense Counsel to conduct the defense of such Claim in good faith, including, without limitation, which defense will be vigorously and diligently prosecuted by the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover a final conclusion or, with the entire Cost thereof from consent of the Indemnifying Party, includingsettlement, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver bound by such final conclusion or approved settlement. If required by the Indemnifying Party, the Indemnified Party shall cooperate fully with the Indemnifying Party and the Indemnifying Party's attorneys in contesting any such Claim or, if appropriate, in making any counterclaim or cross complaint against the Person asserting the Claim against the Indemnified Party, but the Indemnifying Party will reimburse the Indemnified Party for any expenses incurred by the Indemnified Party in so cooperating. The Indemnifying Party shall pay to the Indemnified Party in cash all amounts to which the Indemnified Party may become entitled by reason of its the provisions of this Article XXIII, such payment to be made within thirty (30) days after such amounts are finally determined either by mutual agreement or their right by judgment of a court of competent jurisdiction. Notwithstanding that the Indemnifying Party is actively conducting a defense or contest of any Claim against the Indemnified Party, such Claim may be settled, compromised or paid by the Indemnified Party without the consent of the Indemnifying Party; provided, however, that if such action is taken without the Indemnifying Party's consent, the Indemnifying Party's obligations with respect thereto shall be terminated, and the Indemnifying Party shall have no obligation to defend such Third Party Claimthe Indemnified Party. If the Indemnifying Party assumes the defense of the particular Third Party elects to defend such Claim, the Indemnifying Party shall not, in have the right to conduct the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with Claim in good faith and settle the written Claim in good faith without the prior consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense so long as such settlement or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against compromise (i) does not cause the Indemnified Party whichto incur any present or future material cost, if successfulexpense, could materially interfere with the businessobligation or liability of any kind or nature, operations, assets, condition (financial ii) does not require any admission or otherwise) action or prospects of forbearance from action by the Indemnified Party, and (iii) the Indemnified Party is released from all Losses respecting such Claim.
Appears in 1 contract
Sources: Team Use Agreement
Procedures. (a) If any Person who or which is entitled to seek indemnification under Section 8.2 or Section 8.3 (ian "INDEMNIFIED PARTY") receives notice of the assertion or commencement of any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), against such Indemnified Party shall give written notice with respect to which the Indemnifying Party of its Person against whom or his obligation which such indemnification is being sought (an "INDEMNIFYING PARTY") is obligated to provide indemnification hereunderunder this Agreement, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If will give such Indemnifying Party reasonably prompt written notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the rightthereof, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against not later than 20 days after receipt of such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result written notice of such Third Party Claim. Failure Such notice by the Indemnified Party will describe the Third Party Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of the Damages that have been or may be sustained by the Indemnified Party. The Indemnifying Party will have the right to participate in, or, by giving written notice to the Indemnified Party, to assume, the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (reasonably satisfactory to the Indemnified Party), and the Indemnified Party will cooperate in good faith in such defense.
(b) If, within ten days after giving notice of a Third Party Claim to an Indemnifying Party pursuant to Section 8.4(a), an Indemnified Party receives written notice from the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to that the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right has elected to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in assume the defense of such Third Party Claim, consent to entry Claim as provided in the last sentence of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In additionSection 8.4(a), the Indemnifying Party shall will not be liable for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; PROVIDED, HOWEVER, that if the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten days after receiving written notice from the Indemnified Party that the Indemnified Party reasonably believes the Indemnifying Party has failed to take such steps or if the Indemnifying Party has not agreed to indemnify the Indemnified Party in respect of all Damages relating to the matter, the Indemnified Party may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs and expenses paid or incurred in connection therewith. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim (except which would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, or which provides for injunctive or other non-monetary relief applicable to the Indemnified Party, or, with the written consent exception of such Indemnified Party) which tax matters, does not include as an unconditional term thereof the giving by the claimant release of all Indemnified Parties. If a firm offer is made to settle a Third Party Claim without leading to liability or the plaintiff creation of a financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoingoffer, the Indemnifying Party shall not be entitled will give written notice to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control overthat effect. If the Indemnified Party fails to consent to such firm offer within ten days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim will not exceed the amount of such settlement offer. The Indemnified Party will provide the Indemnifying Party with reasonable access during normal business hours to books, records, and employees of the Indemnified Party necessary in connection with the Indemnifying Party's defense or settlement of any Third Party Claim to which is the extent the subject of a claim for indemnification by an Indemnified Party hereunder.
(c) Any claim by an Indemnified Party on account of Damages which does not result from a Third Party Claim seeks an order(a "DIRECT CLAIM") will be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, injunction or other equitable relief against but in any event not later than 20 days after the Indemnified Party whichbecomes aware of such Direct Claim. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if successfulreasonably practicable, could materially interfere with the business, operations, assets, condition (financial of Damages that has been or otherwise) or prospects of may be sustained by the Indemnified Party. The Indemnifying Party will have a period of ten days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such ten day period, the Indemnifying Party will be deemed to have rejected such claim, in which event the Indemnified Party will be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.
(d) A failure to give timely notice or to include any specified information in any notice as provided in Section 8.4(a), 8.4(b) or 8.4
Appears in 1 contract
Sources: Stock Purchase Agreement (General Automation Inc/Il)
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that The party seeking indemnification under this Article VIII (the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and ") agrees to give prompt notice (the Stockholder are sometimes referred "Notice of Claim") to as an the party from whom indemnification is sought (the "Indemnifying Party," and ") of the assertion of any UAG Third Party Claim and claim by the Indemnified Party, or the commencement of any Stockholder Third Party Claim is sometimes referred to as suit, action or proceeding or the assertion of any claim by a "Third Party Claim," third party in each case as respect of which indemnity may be sought under this Article VIII; provided, however, that no delay on the context so requires), such part of the Indemnified Party in notifying the Indemnifying Party shall give written notice to relieve the Indemnifying Party of its any liability or his obligation to provide indemnification hereunder, provided except to the extent that any failure to so notify the Indemnifying Party shall not relieve them from clearly demonstrates that the defense of any liability that it third party suit, action or he proceeding has been materially prejudiced by the Indemnified Party's failure to give such notice.
(b) If such Notice of Claim relates to a suit, action or proceeding by a third party, the Indemnifying Party may have upon written notice given to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have within twenty (20) days of the right, but not the obligation, to participate at its own expense in the defense thereof receipt by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party of such Notice of Claim, assume control of the defense of such action, suit or proceeding with counsel reasonably satisfactory to the extent reasonably possibleIndemnified Party. If the Indemnifying Party fails timely to defenddoes not so assume control of such defense, contest or otherwise protect against such Third Party Claim, such the Indemnified Party shall have the right to do socontrol such defense. The party not controlling such defense may participate therein at its own expense; provided that, including, without limitationif the Indemnifying Party assumes control of such defense and there exists a conflict of interest between the interests of the Indemnifying Party and those of Indemnified Party with respect to such claim, the right Indemnified Party may retain counsel satisfactory to make any compromise or settlement thereof, it and such the reasonable fees and expenses of counsel to the Indemnified Party shall be considered Losses for purposes of this Agreement. Notwithstanding anything to the contrary contained herein, in the event that the Indemnified Party determines in its reasonable judgment that there is a probability that a claim, suit, action or proceeding may materially adversely affect (it being understood by the parties hereto that any action relating to Taxes shall be deemed to "materially adversely affect") it or its rights under this Agreement other than as a result of monetary damages for which it would be entitled to recover indemnification under this Agreement, then the entire Cost thereof from Indemnified Party may, by written notice to the Indemnifying Party, includingassume the exclusive right to defend, without limitationcompromise, attorneys' fees, disbursements or settle such claim and amounts paid (the reasonable fees and expenses of counsel shall be considered Losses for purposes of this Agreement; provided however that any such compromise or settlement shall only be made with written consent of which such the Indemnified Party has become obligated to pay) as (which consent shall not be unreasonably withheld). The party controlling such defense shall keep the result other party advised of the status of such Third Party Claim. Failure action, suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto.
(c) Neither the Indemnifying Party to notify such nor the Indemnified Party of its or their election shall agree to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with action, suit or proceeding without the prior written consent of such Indemnified Party) the other party, which consent shall not be unreasonably withheld or delayed. For purposes hereof, a party's withholding of its consent to any settlement which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party the other party of a full complete irrevocable release from all liability in respect to such claim or litigation or which requires action (or limits action) other than the payment of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not money that would be entitled considered to control (but be Losses under this Agreement shall be entitled deemed to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partyreasonable.
Appears in 1 contract
Procedures. (a) If any Person who or which is entitled to seek indemnification under Section 8.2 (ian “Indemnified Party”) receives notice of the assertion or commencement of any Stockholder Event of Breach occurs or is alleged and a UAG Third-Party Claim against such Indemnified Party asserts with respect to which the Person against whom or which such indemnification is being sought (an “Indemnifying Party”) is obligated to provide indemnification under this Agreement, the Indemnified Party will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 20 days after receipt of such written notice of such Third-Party Claim. Such notice by the Indemnified Party will describe the Third-Party Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of the Damages that has been or may be sustained by the Indemnified Party. The Indemnifying Party will have the right to participate in, or, by giving written notice to the Indemnified Party, to assume, the defense of any Third-Party Claim at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel (reasonably satisfactory to the Indemnified Party), and the Indemnified Party will cooperate in good faith in such defense; provided, however, that the Stockholder have become obligated Company will be entitled to control the handling of any proceeding, claim, demand or assessments based on a UAG Indemnified claim for Taxes arising out of or relating to any taxable year or period of any of the Sale Companies ending after the Closing Date.
(b) If, within ten days after giving notice of a Third-Party Claim to an Indemnifying Party pursuant to SECTION 9.1Section 8.3(a), or if any Stockholder's Third an Indemnified Party receives written notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such Third-Party Claim is begunas provided in the last sentence of Section 8.3(a), made the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof provided, that if there exists a conflict of interest (including the availability of one or instituted as a result more legal defenses to the Indemnified Party which are not available to the Indemnifying Party) that would make it inappropriate in the reasonable judgment of the Indemnified Party (upon and in conformity with advice of counsel) for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party will be entitled to retain one counsel reasonably acceptable to the Indemnifying Party, at the expense of the Indemnifying Party; and provided further, that if the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third-Party Claim within ten days after receiving written notice from the Indemnified Party, the Indemnified Party may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs and expenses paid or incurred in connection therewith. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third-Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Stockholder may become obligated to a UAG Indemnified Party is not entitled to indemnification hereunder, or (ii) which provides for injunctive or other non-monetary relief applicable to the Indemnified Party, or does not include an unconditional release of all Indemnified Parties. If a UAG Event firm offer is made to settle a Third-Party Claim without leading to liability or the creation of Breach occurs a financial or is alleged and a Stockholder other obligation on the part of the Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of for which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder the Indemnified Party is sometimes referred not entitled to as an "Indemnified Party" and UAG indemnification hereunder and the Stockholder are sometimes referred Indemnifying Party desires to as an "accept and agree to such offer, the Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall will give written notice to the Indemnifying Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within ten days after its receipt of its such notice, the Indemnified Party may continue to contest or his obligation to provide indemnification hereunderdefend such Third-Party Claim and, provided that any failure to so notify in such event, the maximum liability of the Indemnifying Party shall as to such Third-Party Claim will not relieve them from any liability that it or he may have exceed the amount of such settlement offer. The Indemnified Party will provide the Indemnifying Party with reasonable access during normal business hours to books, records and employees of the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each necessary in connection with the Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such ’s defense of any Third-Party Claim which is the subject of a claim for indemnification by an Indemnified Party against any such Third hereunder.
(c) Any claim by an Indemnified Party on account of Damages which does not result from a Third-Party Claim at his or its sole cost and expense. Such Indemnified (a “Direct Claim”) will be asserted by giving the Indemnifying Party shall have the rightreasonably prompt written notice thereof, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with not later than 20 days after the Indemnified Party becomes aware of such Direct Claim. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and assist will indicate the estimated amount of Damages that has been or may be sustained by the Indemnified Party. The Indemnifying Party will have a period of ten days within which to the extent reasonably possible. If the Indemnifying Party fails timely respond in writing to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Direct Claim. If the Indemnifying Party assumes does not so respond within such ten day period, the defense Indemnifying Party will be deemed to have rejected such claim, in which event the Indemnified Party will be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.
(d) A failure to give timely notice or to include any specified information in any notice as provided in Section 8.3(a), (b) or (c) will not affect the particular Third rights or obligations of any party hereunder, except and only to the extent that, as a result of such failure, any party which was entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise materially prejudiced as a result of such failure.
(e) Notwithstanding anything to the contrary in this Agreement, in no event shall any party who is entitled to indemnification under this Article VIII have the right to set off amounts owed (or asserted to be owed) to such party under this Article VIII and any and all such set off rights that may exist under common law, by statute or otherwise are hereby unconditionally waived. Upon payment in full of any Direct Claim for indemnification pursuant to this Article VIII or the payment of any judgment or settlement with respect to a Third-Party Claim, the Indemnifying Party shall not, in be subrogated to the defense extent of such Third payment to the rights of the Indemnified Party against any Person with respect to the subject matter of such Direct Claim or Third-Party Claim.
(f) Each of the parties acknowledges and agrees that such party entered into each of the Transaction Documents to which it is a party based solely on the representations and warranties set forth therein, consent and such party is not relying on any other information (oral or written) provided by one party to entry the other, including business plans and forecasts. As part of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, bargained-for consideration among the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability parties in respect of such Third Party Claim. Notwithstanding the foregoingtransactions contemplated by the Transaction Documents, following the Closing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense rights and remedies of the parties in the defense of), Transaction Documents constitute the sole and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects exclusive rights and remedies of the Indemnified Partyparties under the Transaction Documents in respect of the transactions contemplated hereby, all other rights and remedies being hereby irrevocably waived, except for claims based on common law fraud.
Appears in 1 contract
Sources: Asset Purchase Agreement (Lear Corp)
Procedures. If (ia) In order for a party (the “Indemnified Party”) to be entitled to any Stockholder Event indemnification provided for under this Agreement in respect of, arising out of Breach occurs or is alleged and involving a UAG claim made by any Person against the Indemnified Party asserts that the Stockholder have become obligated to (a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," in each case as the context so requires”), such Indemnified Party shall give written notice to the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so must notify the Indemnifying Party shall not relieve them from any liability that it or he may have to indemnifying party (the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each “Indemnifying Party, jointly ”) in writing (and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have in reasonable detail) of the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) business days after receipt by such Indemnified Party of notice thereof of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided under this Agreement except to the extent the Indemnifying Party shall have been given 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). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within five (5) business days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall be deemed entitled to participate in the defense thereof and, if it chooses, to assume the defense thereof with counsel selected by the Indemnifying Party. Should the Indemnifying Party elect to assume the defense of a waiver Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for any 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 prosecute a Third Party Claim, all the Indemnified Parties shall cooperate 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 its or their right records and information that are reasonably relevant to defend such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided under this Agreement. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld). If the Indemnifying Party assumes the defense of the particular a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party shall not, may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in the defense of connection with such Third Party Claim, consent which releases the Indemnified Party completely in connection with such Third Party Claim and that would not otherwise materially adversely affect the Indemnified Party.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party under Section 15.02 or 15.03 that does not involve a Third Party Claim being asserted against or sought to entry of any judgment or enter into any settlement, except with the written consent of be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim with reasonable promptness to the Indemnifying Party. In addition, The failure by any Indemnified Party to notify the Indemnifying Party shall not enter into relieve the Indemnifying Party from any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff liability that it may have to such Indemnified Party a full release from all under Section 15.02 or 15.03, except to the extent that the Indemnifying Party demonstrates that it has been prejudiced by such failure. If the Indemnifying Party disputes its liability in with respect of to such Third Party Claim. Notwithstanding the foregoingclaim, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled proceed in good faith to have sole control over, the defense or settlement negotiate a resolution of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party whichsuch dispute and, if successfulnot resolved through negotiations, could materially interfere such dispute shall be resolved in accordance with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified PartySection 16.12.
Appears in 1 contract
Sources: License and Supply Agreement (Women First Healthcare Inc)
Procedures. If (ia) The party seeking indemnification under this Article VIII (the “Indemnified Party”) agrees to give prompt notice (the “Notice of Claim”) to the indemnifying party (the “Indemnifying Party”) of the assertion of any Stockholder Event claim, or the commencement of Breach occurs any suit, action or is alleged and proceeding by a UAG third party in respect of which indemnity may be sought under this Article VIII describing in reasonable detail the facts giving rise to any claim of indemnification hereunder; provided, however, that no delay on the part of the Indemnified Party asserts that in notifying the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give written notice to relieve the Indemnifying Party of its any liability or his obligation to provide indemnification hereunder, provided except to the extent that any failure to so notify the Indemnifying Party shall not relieve them from clearly demonstrates that the defense of any liability that it third party suit, action or he proceeding has been materially prejudiced by the Indemnified Party’s failure to give such notice.
(b) If such Notice of Claim relates to a suit, action or proceeding by a third party (a “Third Party Claim”), the Indemnifying Party may have upon written notice given to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have within thirty (30) days of the right, but not the obligation, to participate at its own expense in the defense thereof receipt by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party of such Notice of Claim, assume control of the defense of such action, suit or proceeding with counsel reasonably satisfactory to the extent reasonably possibleIndemnified Party. If the Indemnifying Party does not so assume control of such defense or if the Indemnifying Party fails timely to defendgive reasonable written assurance to the Indemnified Party of the Indemnifying Party’s financial capacity to defend and/or provide indemnification as required hereby, contest or otherwise protect against such Third Party Claim, such the Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and control such defense. The party not controlling such defense may participate therein at its own expense. The Indemnified Party shall not be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days liable for expenses incurred after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of a third party claim as set forth herein; provided, however, that (i) if in the particular Third reasonable opinion of counsel for the Indemnified Party, the Indemnifying Party Claimassumes control of such defense and there exists a conflict of interest between the interests of the Indemnified Party and those of the Indemnifying Party with respect to such claim, or (ii) if the Indemnifying Party shall fail to assume responsibility for such defense, the Indemnified Party may retain counsel satisfactory to it and the reasonable fees and expenses of counsel to the Indemnified Party shall be considered Losses for purposes of this Agreement. Notwithstanding anything to the contrary contained herein, in the event that the Buyer reasonably determines that a third party claim would materially adversely affect the Buyer’s ability to conduct the Business after the Closing Date (including, for example, if the Buyer reasonably determines, in connection with any such third party claim, that the Buyer’s ability to conduct a material portion of the Business may be enjoined), then the Buyer may, by written notice to the Seller, assume the exclusive right to control, defend, compromise, or settle such claim and the reasonable fees and expenses of counsel shall be considered Losses for purposes of this Agreement. In all such cases, the Indemnifying Party will have the right to participate, at Indemnifying Party’s expense, in the defense or settlement of such claim with counsel reasonably satisfactory to the Buyer. The party controlling such defense shall keep the other party advised of the status of such action, suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto. In any circumstance in which the Indemnified Party assumes the defense of any claim, the Indemnifying Party shall not, in only be responsible for the defense costs and expenses of such Third Party Claim, consent to entry one counsel representing the interests of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the .
(c) The Indemnifying Party shall not enter into agree to any settlement of any Third Party Claim (except with action, suit or proceeding without the prior written consent of such the Indemnified Party) , which consent shall not be unreasonably withheld or delayed. For purposes hereof, the Indemnified Party’s withholding of its consent to any settlement which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such the Indemnified Party of a full complete irrevocable release from all liability in respect to such claim or litigation or which requires action (or limits action) other than the payment of such Third money by the Indemnifying Party shall be deemed to be reasonable.
(d) In the event that an Indemnified Party seeks indemnification for Losses pursuant to this Article VIII, the procedures in this subsection (d) shall also apply. Within ninety (90) days after delivery of a Notice of Claim. Notwithstanding the foregoing, the Indemnifying Party shall provide to the Indemnified Party a written response (the “Response Notice”) in which the Indemnifying Party must either: (i) agree that some or all of the Losses claimed should be indemnified and, in the case of any Losses claimed and not be so agreed to, contest such claimed amount, or (ii) contest all of the Losses claimed. The Indemnifying Party may contest such claimed amount of Losses only based upon a good faith belief that all or such portion of such claimed amount does not constitute Losses for which the Indemnified Party is entitled to control indemnification hereunder. If no such Response Notice is delivered by the Indemnifying Party within such ninety (but 90)-day period, the Indemnifying Party shall be entitled deemed to participate at their own expense have agreed that all of the claimed amount should be indemnified. Any such amount agreed to, or so deemed to be agreed to, by the Indemnifying Party pursuant to clause (i) or (ii) of this subsection (d) or otherwise pursuant to this Agreement being referred to herein as an “Agreed Amount.”
(e) If the Indemnifying Party in the defense ofResponse Notice contests all or part of the claimed amount (thereupon, the “Contested Amount”), the Indemnifying Party and the Indemnified Party shall be entitled attempt promptly and in good faith to have sole control over, agree upon the defense or settlement rights of any Third Party Claim the parties with respect to the extent Contested Amount. If the Third Indemnifying Party Claim seeks an order, injunction or other equitable relief against and the Indemnified Party whichshould so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties and, if successfulsuch agreement provides that all or a portion of the Contested Amount is to be paid to the Indemnified Party (all or such portion of such Contested Amount to be so paid to the Indemnified Party being also referred to herein as an “Agreed Amount”), could materially interfere the Indemnifying Party shall make such payments in accordance with the business, operations, assets, condition terms of this Agreement. If no such agreement can be reached after good faith negotiation within thirty (financial or otherwise30) or prospects days of the delivery of the Indemnifying Party Response Notice (or such longer period as the Indemnified PartyParty and Indemnifying Party may mutually agree), the matter shall be settled in accordance with the dispute resolution provisions of Section 10.11 of this Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Kopin Corp)
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and In order for a UAG Indemnified Party asserts that party (the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "“Indemnified Party" and UAG and ”) to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a Loss or a claim or demand made by any person against the Stockholder are sometimes referred to as an "Indemnifying Indemnified Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as
(a "“Third Party Claim," in each case as the context so requires”), such Indemnified Party shall give deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) with reasonable promptness after receipt by such Indemnified Party of written notice to of the Third Party Claim and shall provide the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify with such information with respect thereto as the Indemnifying Party shall not relieve them from any liability that it or he may have to reasonably request. The failure by the Indemnified Party to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this ARTICLE 9. Article VIII except to the extent that the Indemnifying Party is materially prejudiced by such failure.
(b) If such notice relates the Indemnifying Party acknowledges in writing its obligation to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such indemnify the Indemnified Party against any such and all Losses that may result from a Third Party Claim that is exclusively for civil monetary damages at his or its sole cost and expense. Such Indemnified law pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party upon written notice to the extent reasonably possible. If Indemnified Party within fifteen (15) days of receipt of notice from the Indemnifying Indemnified Party fails timely to defend, contest or otherwise protect against of the commencement of such Third Party Claim, such to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and satisfactory to the Indemnified Party. Notwithstanding the foregoing, (i) the Indemnifying Party shall not be entitled to assume the defense of (x) any Third Party Claim for equitable or injunctive relief or any claim that would impose criminal liability or damages, or (y) any Third Party Claim relating to Taxes with respect to a period beginning before and ending after the Closing Date, and (ii) the Indemnified Party shall have the right to do sodefend, including, without limitation, at the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from expense of the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen described in clauses (15x) days after notice thereof shall have been given to the and/or (y). The Indemnifying Party shall be deemed a waiver liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of its or their such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 8.4(b), the Indemnified Party shall have the sole right to defend assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the particular Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall not, in without the defense prior written consent of such Third Party Claimthe Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment or enter into any settlement, except with the written consent of respect to such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim if such settlement, compromise or judgment (except with the written consent i) involves a finding or admission of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party.wrongdoing,
Appears in 1 contract
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party A party seeking indemnification pursuant to SECTION 9.1Sections 7.2 or 7.3 (an “Indemnified Party”) shall give prompt notice to the party from whom such indemnification is sought (the “Indemnifying Party”) of the assertion of any claim or assessment, or if the commencement of any Stockholder's Third Party Claim is begunaction, made suit, audit or instituted as proceeding, by a result third party in respect of which the Stockholder indemnity may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party be sought hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," in each case ”) and will give the Indemnifying Party such information with respect thereto as the context so requires)Indemnifying Party may reasonably request, but no failure to give such Indemnified Party notice shall give written notice to relieve the Indemnifying Party of its or his obligation any liability hereunder (except to provide indemnification hereunder, provided that any failure to so notify the extent the Indemnifying Party shall not relieve them from any liability that it or he may have to has suffered actual prejudice thereby). Thereafter, the Indemnified Party under this ARTICLE 9. If such notice relates shall deliver to a the Indemnifying Party, within five (5) business days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim, each . The Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not exercisable by written notice (the obligation“Notice”) to the Indemnified Party within thirty (30) days of receipt of notice from the Indemnified Party of the commencement or assertion of any Third Party Claim, to participate at its own expense in assume the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure using counsel selected by the Indemnifying Party and reasonably acceptable to notify such the Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to Party. Should the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right so elect to defend such Third Party Claim. If the Indemnifying Party assumes assume the defense of the particular a Third Party Claim, the Indemnifying Party shall notnot 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 shall fail to assume the defense of the Third Party Claim within such thirty (30) day period, in the Indemnified Party shall have the right to undertake the defense of such Third Party Claim on behalf of the Indemnifying Party. Regardless of whether the Indemnifying Party elects to assume the defense of any such Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge such Third Party Claim without the Indemnifying Party’s prior written consent.
(b) The Indemnifying Party or the Indemnified Party, as the case may be, shall in any event have the right to participate, at its own expense, in the defense of any Third Party Claim which the other is defending.
(c) The Indemnifying Party, if it shall have assumed the defense of any Third Party Claim in accordance with the terms hereof, shall have the right, upon five (5) days prior written notice to the Indemnified Party, to consent to the entry of any judgment with respect to, or otherwise settle such Third Party Claim provided the Indemnifying Party agrees that as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge such judgment or enter into settlement unless (i) the Third Party Claim involves equitable or other non-monetary damages or (ii) in the reasonable judgment of the Indemnified Party such settlement would have a continuing material adverse effect on the Indemnified Party’s business (including any settlementmaterial impairment of its relationships with customers and suppliers), except in which case such settlement only may be made with the written consent of such the Indemnified Party, which consent shall not be unreasonably withheld.
(d) Whether or not the Indemnifying Party chooses to defend or prosecute any claim involving a third party, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. In additionSuch cooperation shall include access during normal business hours afforded 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, and the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and reimburse the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partyfor all its reasonable out-of-pocket expenses in connection therewith.
Appears in 1 contract
Sources: Stock Purchase Agreement (Valiant Health Care, Inc.)
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and In order for a UAG Indemnified Party asserts that party (the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and ") to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim made by any Person against the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Indemnified Party Claim and any Stockholder Third Party Claim is sometimes referred to as (a "Third Party Claim," in each case as the context so requires"), such Indemnified Party shall give written notice to the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so must notify the Indemnifying Party shall not relieve them from any liability that it or he may have to indemnifying party (the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each "Indemnifying Party, jointly ") in writing (and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have in reasonable detail) of the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) business days after receipt by such Indemnified Party of notice thereof of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been given 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). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within five (5) business days' after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall be deemed entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party. Should the Indemnifying Party so elect to assume the defense of a waiver Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for any 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 prosecute a Third Party Claim, all the Indemnified Parties shall cooperate 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 its or their right records and information that are reasonably relevant to defend 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 assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld). If the Indemnifying Party assumes the defense of the particular a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party shall not, may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in the defense of connection with such Third Party Claim, consent which releases the Indemnified Party completely in connection with such Third Party Claim and that would not otherwise materially adversely affect the Indemnified Party.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party under Section 7.02 or 7.03 that does not involve a Third Party Claim being asserted against or sought to entry of any judgment or enter into any settlement, except with the written consent of be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim with reasonable promptness to the Indemnifying Party. In addition, The failure by any Indemnified Party to notify the Indemnifying Party shall not enter into relieve the Indemnifying Party from any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff liability that it may have to such Indemnified Party a full release from all under Section 7.02 or 7.03, except to the extent that the Indemnifying Party demonstrates that it has been prejudiced by such failure. If the Indemnifying Party disputes its liability in with respect of to such Third Party Claim. Notwithstanding the foregoingclaim, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (King Pharmaceuticals Inc)
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party A party seeking indemnification pursuant to SECTION 9.1, Sections 7.2 or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or 7.3 (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and ") shall give prompt notice to the Stockholder are sometimes referred to as an party from whom such indemnification is sought (the "Indemnifying Party," and ") of the assertion of any UAG Third Party Claim and claim or assessment, or the commencement of any Stockholder Third Party Claim is sometimes referred to as action, suit, audit or proceeding, by a third 29 35 party in respect of which indemnity may be sought hereunder (a "Third Party Claim," in each case ") and will give the Indemnifying Party such information with respect thereto as the context so requires)Indemnifying Party may reasonably request, but no failure to give such Indemnified Party notice shall give written notice to relieve the Indemnifying Party of its or his obligation any liability hereunder (except to provide indemnification hereunder, provided that any failure to so notify the extent the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9has suffered actual prejudice thereby). If such notice relates to a Third Party Claim, each The Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not exercisable by written notice (the obligation"Notice") to the Indemnified Party within thirty (30) days of receipt of notice from the Indemnified Party of the commencement or assertion of any Third Party Claim, to participate at its own expense in assume the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure using counsel selected by the Indemnifying Party and reasonably acceptable to notify such the Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to Party. Should the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right so elect to defend such Third Party Claim. If the Indemnifying Party assumes assume the defense of the particular a Third Party Claim, the Indemnifying Party shall notbe deemed to have irrevocably accepted the matter as a claim subject to indemnification pursuant to this Article 7, in and provided that the Indemnifying Party thereafter diligently and continuously pursues the defense of such the Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled liable to control (but shall be entitled to participate at their own expense the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense of)thereof. If the Indemnifying Party shall fail to assume the defense of the Third Party Claim within such thirty (30) day period, or subsequently fails to diligently and continuously pursue the defense of the Third Party Claim, the Indemnified Party shall be entitled have the right to have sole control overundertake the defense of such Third Party Claim on behalf of the Indemnifying Party. In the event the Indemnifying Party elects to assume the defense of any such Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge such Third Party Claim without the Indemnifying Party's prior written consent.
(b) The Indemnifying Party or the Indemnified Party, as the case may be, shall in any event have the right to participate, at its own expense, in the defense or settlement of any Third Party Claim which the other is defending.
(c) The Indemnifying Party, if it shall have assumed the defense of any Third Party Claim in accordance with the terms hereof, shall have the right, upon five (5) days' prior written notice to the extent Indemnified Party, to consent to the entry of judgment with respect to, or otherwise settle such Third Party Claim, provided that such consent, judgment or settlement includes a release of the Indemnified Party and the settlement or judgment involves an amount to be paid on behalf of or by the Indemnified Party that is less than the Cap Amount. Notwithstanding the foregoing, in no event shall the Indemnifying Party have the right to consent to the entry of judgment or otherwise settle such Third Party Claim if: (i) the Third Party Claim seeks an order, injunction involves equitable or other equitable relief against non-monetary damages, or (ii) in the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects reasonable judgment of the Indemnified Party, such settlement would have a continuing material adverse effect on the Indemnified Party's business (including any material impairment of its relationships with customers and suppliers), in which case such settlement only may be made with the written consent of the Indemnified Party, which consent shall not be unreasonably withheld.
(d) Whether or not the Indemnifying Party chooses to defend or prosecute any claim involving a third party, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. Such cooperation shall include access during normal business hours afforded to 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, and the Indemnifying Party shall reimburse the Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith.
Appears in 1 contract
Sources: Stock Purchase Agreement (O2wireless Solutions Inc)
Procedures. If (ia) A party seeking indemnification (the “Indemnified Party”) in respect of, arising out of or involving a Loss or a claim or demand made by any Stockholder Event of Breach occurs or is alleged and a UAG person against the Indemnified Party asserts that the Stockholder have become obligated to (a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," ”) shall deliver notice (a “Claim Notice”) in each case respect thereof to the Stockholder Representative, on behalf of the Stockholders, or to the Acquiror, as applicable (the context so requires), “Indemnifying Party”) with reasonable promptness after receipt by such Indemnified Party shall give written of notice to of the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each and shall provide the Indemnifying PartyParty with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to deliver a Claim Notice, jointly and severallyhowever, agrees shall not release the Indemnifying Party from any of its obligations under this Article V except to defend, contest or otherwise protect the extent that the Indemnifying Party is materially prejudiced by such failure.
(b) If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any such and all Losses that may result from a Third Party Claim that is exclusively for civil monetary damages at his or its sole cost and expense. Such Indemnified law pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party upon written notice to the extent reasonably possible. If Indemnified Party within 30 days of receipt of a Claim Notice from the Indemnifying Indemnified Party fails timely to defend, contest or otherwise protect against in respect of such Third Party Claim, such to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of (i) any Third Party Claim for equitable or injunctive relief or any claim that would impose criminal liability or damages or (ii) any Third Party Claim that relates to Taxes (if the Indemnifying Party is not the Acquiror), and, in each case, the Indemnified Party shall have the right to do sodefend, including, without limitation, at the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from expense of the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of any such Third Party Claim. Failure The Indemnifying Party shall be liable for the reasonable out-of-pocket fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to notify such Indemnified assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof the time period and otherwise in accordance with the first sentence of this Section 5.4(b), the Indemnified Party shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their sole right to defend assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the particular Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall not, in without the defense prior written consent of such Third Party Claimthe Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment or enter into any settlement, except with the written consent of respect to such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim if such settlement, compromise or judgment (except with the written consent A) involves a finding or admission of such Indemnified Partywrongdoing, (B) which does not include as an unconditional term thereof the giving written release by the claimant or plaintiff of the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim or (C) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder. Notwithstanding anything to the contrary, the Acquiror shall not, without the prior written consent of the Stockholder Representative (not to be unreasonably withheld, conditioned, or delayed) enter into any settlement or compromise or consent to the entry of any judgment with respect to a Third Party Claim relating to Taxes to the extent such settlement, compromise or judgment would increase any Pre-Closing Taxes for which the Company Stockholders and Company Optionholders are liable under this Agreement.
(c) An Indemnified Party seeking indemnification in respect of, arising out of or involving a Loss or a claim or demand hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim”) shall deliver a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such Direct Claim, and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article V except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article V. If the Indemnifying Party does not notify the Indemnified Party within 30 days following its receipt of a Claim Notice in respect of a Direct Claim that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such Direct Claim specified by the Indemnified Party in such Claim Notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
(d) The indemnification required by the Company Stockholders hereunder shall be made, at the option of each Company Stockholder, either in cash or by cancellation by the Acquiror of a number of Merger Consideration Units that is equal to (i) the amount of the indemnifiable Losses payable by such Company Stockholder, divided by (ii) the Merger Consideration Unit Issue Value (or the number of shares of Acquiror Common Stock issued to such Company Stockholder into which such number of Merger Consideration Units has been converted); provided that, if such Company Stockholder fails to make payment in cash within five (5) Business Days of demand for payment, the Acquiror may require that such indemnification be made by cancellation of shares. To the extent such cancellation results in any Company Stockholder holding a fractional share of Acquiror Series B Preferred Stock, the number of shares of Acquiror Series B Preferred Stock such Company Stockholder holds shall be rounded to the nearest whole share. To the extent such cancellation results in any Company Stockholder holding Acquiror Warrants to acquire a fractional share of Acquiror Series B Preferred Stock, the number of shares of Acquiror Series B Preferred Stock that may be acquired pursuant to such Acquiror Warrants shall be rounded to the nearest whole share. To the extent such cancellation results in any Company Stockholder holding a fractional share of Acquiror Common Stock, the number of shares of Acquiror Common Stock such Company Stockholder holds shall be rounded to the nearest whole share. Notwithstanding the foregoing, from and after the close of business on the 120th day following the third anniversary of the Closing (or, if later, the final resolution of any claim pursuant to any Claim Notice delivered prior to such date), any shares of Acquiror Series B Preferred Stock or Acquiror Common Stock transferred by any Company Stockholder in accordance with the A&R Stockholder Agreement to a transferee that is not an Affiliate or Associate (as defined in the A&R Stockholder Agreement) of such Company Stockholder shall no longer be subject to cancellation in order to pay indemnification claims under this Agreement.
(e) The Indemnifying Party shall not be entitled to control (but shall require that any action be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense made or settlement of brought against any Third Party Claim to the extent the Third Party Claim seeks an order, injunction other Person before action is brought or other equitable relief claim is made against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of it hereunder by the Indemnified Party.
(f) Notwithstanding the provisions of Section 7.10, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere.
(g) The parties acknowledge and agree that their sole and exclusive remedy with respect to any and all claims (other than claims arising from fraud, intentional misrepresentation or intentional breach) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement, shall be pursuant to the indemnification provisions set forth in this Article V. In furtherance of the foregoing, each party hereby waives, to the fullest extent permitted under Law, any and all rights, claims and causes of action (other than rights, claims and causes of action arising from fraud, intentional misrepresentation or intentional breach) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant to the indemnification provisions set forth in this Article V. Nothing in this subsection (g) shall limit any Person's right to seek and obtain any equitable relief to which any Person shall be entitled or to seek and obtain any remedy on account of any rights, claims and causes of action arising from fraud, intentional misrepresentation or intentional breach.
Appears in 1 contract
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and a UAG In order for the Indemnified Party asserts that to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim made by any person against the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires"), such Indemnified Party shall give must notify the Indemnifying Party in writing of the Third Party Claim (a "Claim Notice") promptly following receipt by such Indemnified Party of written notice of the Third Party Claim, which notification, to be a valid Claim Notice, must be accompanied by a copy of the written notice of the Third Party Claimant asserting the Third Party Claim; provided, however, that failure to give such notification promptly (so long as a valid Claim Notice is given before the expiration of the applicable period) shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been prejudiced as a result of such failure. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party copies of its or his obligation all other notices and documents (including court papers) received by the Indemnified Party relating to provide indemnification hereunderthe Third Party Claim.
(b) If a Third Party Claim is made against an Indemnified Party, provided the Indemnifying Party shall 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; provided, however, that any failure such counsel is not reasonably objected to by the Indemnified Party. Should the Indemnifying Party so notify elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not relieve them from any liability that it or he may have be liable to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such for any legal expenses incurred by the Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in connection with the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possiblethereof, except as provided below. If the Indemnifying Party fails timely to defendassumes such defense, contest or otherwise protect against such Third Party Claim, such the Indemnified Party shall have the right to do soparticipate in the defense thereof and to employ counsel, includingat its own expense, without limitation, separate from the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from counsel employed by the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be deemed a waiver liable for the reasonable fees and expenses of counsel employed by the Indemnified Party (provided that the incurrence of such fees and expenses of counsel was reasonably 29 necessary to respond timely to legal process) for any period after the Claim Notice is given during which the Indemnifying Party of its or their right has not assumed the defense thereof if and to defend the extent that the Indemnifying Party is responsible to indemnify for such Third Party Claim. If the Indemnifying Party assumes does not assume the defense of a Third Party Claim within 30 days after the particular giving by the Indemnified Party to the Indemnifying Party of a valid Claim Notice with respect to the Third Party Claim, the Indemnifying Party shall notbe liable to the Indemnified Party for all fees and expenses of counsel employed by the Indemnified Party if and to the extent that the Indemnifying Party is responsible to indemnify for such Third Party Claim; provided, however, such counsel is not reasonably objected to by the Indemnifying Party. If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnified Parties shall cooperate 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 which are relevant to such Third Party Claim, consent and making employees available on a mutually convenient basis to entry provide additional information and explanation of any judgment material provided hereunder and to act as a witness or enter into respond to legal process. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld). If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, except with the written consent compromise or discharge of such Indemnified Party. In addition, a Third Party Claim that the Indemnifying Party shall not enter into any settlement may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of connection with such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and which releases the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any completely in connection with such Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified PartyClaim.
Appears in 1 contract
Procedures. Claims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) If any Person who or which is entitled to seek indemnification under Section 9.2 (an “Indemnified Party”) receives notice of the assertion or commencement of any claim asserted against an Indemnified Party by a third party (“Third Party Claim”) in respect of any matter that is subject to indemnification under Section 9.2, the Indemnified Party shall promptly (i) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified notify the Party asserts that the Stockholder have become obligated to a UAG the Indemnified Party pursuant to SECTION 9.1Section 9.2 above, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which (the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "“Indemnifying Party," and any UAG ”) of the Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give written notice (ii) transmit to the Indemnifying Party a written notice (“Claim Notice”) describing in reasonable detail the nature of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying a copy of all papers served with respect to such claim (if any), the Indemnified Party, jointly and severally, agrees ’s best estimate of the amount of Losses attributable to defend, contest or otherwise protect such Indemnified Party against any such the Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not basis of the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and ’s request for indemnification under this Agreement. Failure to timely provide such Claim Notice shall in any event cooperate with and assist not affect the right of the Indemnified Party’s indemnification hereunder, except to the extent the Indemnifying Party to the extent reasonably possible. If the is prejudiced by such delay or omission.
(b) The Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, defend the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend against such Third Party Claim. If the Indemnifying Party assumes notifies the Indemnified Party that the Indemnifying Party elects to assume the defense of the particular Third Party ClaimClaim (such election to be without prejudice to the right of the Indemnified Party to dispute whether such claim is an identifiable Loss under this Article IX), then the Indemnifying Party shall not, in have the defense of right to defend such Third Party ClaimClaim with counsel selected by the Indemnifying Party (who shall be reasonably satisfactory to the Indemnified Party), consent by all appropriate proceedings, to entry a final conclusion or settlement at the discretion of any judgment or enter into any settlement, except the Indemnifying Party in accordance with the written consent this Section 9.4(b). The Indemnifying Party shall have full control of such Indemnified Party. In additiondefense and proceedings, including any compromise or settlement thereof; provided that the Indemnifying Party shall not enter into any settlement agreement without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed); provided further, that such consent shall not be required if (i) the settlement agreement contains a complete and unconditional general release by the third party asserting the claim to all Indemnified Parties affected by the claim and (ii) the settlement agreement does not contain any sanction or restriction upon the conduct of any business by the Indemnified Party or its Affiliates. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled elects to control (but shall be entitled to participate at their own expense in contest, including the defense of), and making of any related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person. The Indemnified Party shall be entitled to have sole control overmay participate in, the but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 9.4(b), and the extent Indemnified Party shall bear its own costs and expenses with respect to such participation.
(c) If the Indemnifying Party does not notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 9.4(b), then the Indemnified Party shall have the right to defend, and be reimbursed for its reasonable cost and expense (but only if the Indemnified Party is actually ultimately determined to be entitled to indemnification hereunder) in regard to the Third Party Claim seeks an order, injunction or other equitable relief against with counsel selected by the Indemnified Party which(who shall be reasonably satisfactory to the Indemnifying Party), if successfulby all appropriate proceedings, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of which proceedings shall be prosecuted diligently by the Indemnified Party. In such circumstances, the Indemnified Party shall defend any such Third Party Claim in good faith and have full control of such defense and proceedings; provided, however, that the Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 9.4(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation.
(d) Any claim by an Indemnified Party on account of Losses that does not result from a Third Party Claim (a “Direct Claim”) will be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) days after the Indemnified Party becomes aware of such Direct Claim. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of damages that has been or may be sustained by the Indemnified Party. The Indemnifying Party will have a period of twenty (20) days within which to object or accept in writing such Direct Claim. Any such objection is called a “
Appears in 1 contract
Sources: Partnership Interests Purchase and Contribution Agreement (Eagle Rock Energy Partners L P)
Procedures. If Except with respect to Tax Claims, which are addressed in Article VII, claims for indemnification under this Agreement shall be asserted and resolved as follows:
(ia) Any Buyer Indemnitee or Seller Indemnitee seeking indemnification under this Agreement (an “Indemnified Party”) with respect to any Stockholder Event of Breach occurs or is alleged and a UAG claim asserted against the Indemnified Party asserts by a third party (“Third Party Claim”) in respect of any matter that is subject to indemnification under Section 9.02 shall promptly transmit a written notice (a “Claim Notice”) to the Stockholder have become obligated to a UAG Indemnified other Party pursuant to SECTION 9.1, or if any Stockholder's (the “Indemnifying Party”) of the Third Party Claim is begun(and in any event within sixty (60) Business Days of the date on which the Indemnified Party knows of the Third Party Claim) describing in reasonable detail the nature of the Third Party Claim, made or instituted a copy of all papers served with respect to such claim (if any), the basis of the Indemnified Party’s request for indemnification under this Agreement and a reasonable estimate of any Damages suffered with respect thereto; provided, that, the failure to give such Claim Notice on a timely basis will not affect the indemnification provided hereunder except to the extent the Indemnifying Party will have actually and materially been prejudiced as a result of which the Stockholder may become obligated such failure.
(b) Subject to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requiresSection 9.03(b), such Indemnified Party shall give written notice to the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, defend the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of against such Third Party Claim. Failure by the The Indemnifying Party to will promptly notify such the Indemnified Party of its or their election to defend (and in any such Third Party Claim event within fifteen (15) days after notice thereof shall have been given having received any Claim Notice or reasonably sooner, if the nature of the Third Party Claim or applicable Law so requires) with respect to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of whether or not it is exercising its or their right to defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party assumes notifies the Indemnified Party that the Indemnifying Party elects to assume the defense of the particular Third Party Claim, then the Indemnifying Party shall have the right to defend such Third Party Claim with counsel (it being understood that the fees and expenses of such counsel shall be borne solely by the Indemnifying Party) selected by the Indemnifying Party, which counsel shall be reasonably acceptable to the Indemnified Party, in all appropriate proceedings, to a final conclusion or settlement at the discretion of the Indemnifying Party in accordance with this Section 9.03(b). The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnifying Party shall not enter into any settlement agreement without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, such consent shall not be required if (i) the settlement agreement contains a complete, final and unconditional general release by the third party asserting the Third Party Claim to all Indemnified Parties affected by the Third Party Claim, (ii) the settlement agreement does not contain any sanction or restriction upon the conduct or operation of any business conducted by the Indemnified Party or its Affiliates, (iii) the settlement agreement does not contain any findings or admissions of any violation of Law or any violation of the rights of any Person and (iv) the settlement agreement does not involve any relief other than monetary damages that are paid in full by Indemnifying Party. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 9.03(b), and the Indemnified Party shall bear its own costs and expenses with respect to such participation. Further, the Indemnified Party may, in connection with any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 9.03(b), participate in or initiate and control any counter claim or cross claim against any Person (except the Indemnifying Party) and the Indemnified Party shall bear its own costs and expenses with respect to such counter claim or cross claim.
(i) Notwithstanding anything else to the contrary in this Agreement, in no event shall the Indemnifying Party have the right to assume control of any defense, if, and for so long as, any of the following are true with respect to the applicable Third Party Claim: (1) the Indemnifying Party does not acknowledge to the Indemnified Party in writing, within ten (10) Business Days of receipt by the Indemnifying Party of the Claim Notice, its obligations to indemnify the Indemnified Party with respect to all elements of such Third Party Claim to the extent required in this Article IX, (2) the Indemnifying Party does not provide the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend such Third Party Claim and fulfill its obligations hereunder, (3) the applicable Third Party Claim seeks non-monetary relief against the Indemnified Party or involves monetary relief that would be reasonably likely to result in Liability to the Indemnified Party that is greater than the amount for which the Indemnifying Party may be responsible, (4) the applicable Third Party Claim involves criminal allegations, (5) the applicable Third Party Claim is one in which the Indemnifying Party is also a party to such Third Party Claim and the outside counsel of the Indemnified Party determines in good faith that joint representation would be a conflict of interests, (6) the settlement or an adverse judgment of such Third Party Claim is, in the good faith judgment of the Indemnified Party, likely to establish a pattern or practice adverse to the continuing business interests of the Indemnified Party or any of its Affiliates, or (7) the applicable Third Party Claim involves a Third Party Claim which, upon reasonable determination by counsel for the Indemnified Party, the Indemnifying Party failed or is failing to diligently prosecute or defend. In the event the Indemnifying Party is not eligible to assume control of any defense of a Third Party Claim for which indemnification is sought hereunder pursuant to this Section 9.03(b)(i) and the Indemnifying Party has acknowledged its obligations to indemnify the Indemnified Party with respect to all elements of such Third Party Claim to the extent required in this Article IX, then the Indemnified Party may not enter into any compromise or settlement of such Third Party Claim without the Indemnifying Party’s consent as it relates to monetary elements of such compromise or settlement (which consent shall not be unreasonably withheld, conditioned or delayed).
(c) If the Indemnifying Party does not notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 9.03(b) within fifteen (15) Business Days after receipt of any Claim Notice or reasonably sooner, if the nature of the Third Party Claim or applicable Law so requires, then the Indemnified Party shall defend itself against the applicable Third Party Claim, and be reimbursed for its reasonable cost and expense (but only if the Indemnified Party is actually entitled to indemnification hereunder) in regard to the Third Party Claim with counsel selected by the Indemnified Party, in all appropriate proceedings and in good faith, which proceedings shall be prosecuted diligently by the Indemnified Party. In such circumstances, the Indemnified Party shall defend any such Third Party Claim in good faith and have full control of such defense and proceedings. The Indemnifying Party will be bound by any determination made in such Third Party Claim or any settlement, compromise or discharge effected by the Indemnified Party in accordance with this Section 9.03. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 9.03(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation.
(d) If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, including providing reasonable access to documents, records and information. In addition, the Indemnified Party will make its personnel reasonably available at no cost to the Indemnifying Party for conferences, discovery, proceedings, hearings, trials or appeals as may be reasonably requested by the Indemnifying Party. Access to such documents, records, information and personnel shall be granted during normal business hours at a location and in a manner reasonably calculated to minimize disruption to the Indemnified Party’s business and operations. The Indemnifying Party agrees to reimburse the Indemnified Party for its reasonable out-of-pocket expenses, including attorneys’ fees, but excluding personnel salaries, incurred by the Indemnified Party in connection with providing access to such documents, records, information and personnel. The Indemnified Party also agrees to cooperate with the Indemnifying Party and its counsel in the making by the Indemnifying Party of any related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person and executing powers of attorney to the extent necessary; provided, that, the Indemnifying Party may not initiate any such counterclaim or cross complaint without the consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) if such counterclaim or cross complaint would reasonably be expected to have a material adverse effect on the Indemnified Party’s business or relates to its customers, suppliers, vendors or other service providers. Nothing contained herein will require the Indemnified Party to initiate any counterclaim or cross claim.
(e) A claim for indemnification for any matter not involving a Third Party Claim shall be asserted by notice to the Party from whom indemnification is sought as promptly as practicable (the failure to give prompt notice shall not, however, relieve the Indemnifying Party of its indemnification obligations except to the extent the Indemnifying Party is actually and materially prejudiced by such delay), which notice shall describe in reasonable detail the nature of the claim and the basis of the Indemnified Party’s request for indemnification under this Agreement
(f) If the Indemnifying Party chooses to defend any Third Party Claim, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, cause, or agree to, the waiver of the attorney-client privilege, attorney work-product immunity or any other privilege or protection in respect of confidential legal memoranda and other privileged materials drafted by, or otherwise reflecting the defense legal advice of, internal or outside counsel of an Indemnified Party (the “Subject Materials”) relating to such Third Party Claim. Each party hereto mutually acknowledges and agrees, consent on behalf of itself and its Affiliates, that (i) each shares a common legal interest in preparing for the defense of legal proceedings, or potential legal proceedings, arising out of, relating to entry or in respect of any judgment actual or enter into threatened Third Party Claim or any settlementrelated claim or counterclaim, except (ii) the sharing of Subject Materials will further such common legal interest and (iii) by disclosing any Subject Materials to and/or sharing any Subject Materials with the written consent of such Indemnified Indemnifying Party. In addition, the Indemnifying Party shall not enter into waive the attorney-client privilege, attorney work-product immunity or any settlement other privilege or protection. The Indemnified Party shall not be required to make available to the Indemnifying Party any information that is subject to an attorney-client or other applicable legal privilege that based on the advice of outside counsel would be impaired by such disclosure or any confidentiality restriction under applicable Law; provided that in the event any information is not disclosed pursuant to this sentence, then the Indemnified Party shall use commercially reasonable efforts to summarize or otherwise provide such information in a manner that does not impair or waive the Indemnified Party’s attorney-client or similar privilege or violate any applicable confidentiality restriction.
(g) The Indemnified Party shall, upon the reasonable request of the Indemnifying Party and upon advance notice at mutually convenient times, make reasonably available to the Indemnifying Party such books, records or other documents and employees and representatives reasonably related to such Third Party Claim (except with or any related claim or counterclaim that are within the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant ’s possession and control that are necessary or the plaintiff to appropriate for such Indemnified Party a full release from all liability litigation or other legal proceeding or for any internal or external audit work in respect of such Third Party Claim. Notwithstanding Claim conducted by the foregoingIndemnifying Party; provided, however, that any confidential or privileged materials shall not be disclosed by the Indemnified Party other than as needed for such defense, and the Indemnifying Party shall not be entitled agrees to control (but shall be entitled to participate at their own expense in the defense of), enter into a commercially reasonable confidentiality and non-use agreement with the Indemnified Party shall be entitled with respect to have sole control oversuch books, the defense or settlement of records and other documents and any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partyinformation contained therein.
Appears in 1 contract
Procedures. If (ia) In order for a Person (the “Indemnified Party”) to be entitled to any Stockholder Event indemnification provided for under Section 7.01 in respect of, arising out of Breach occurs or is alleged and involving a UAG claim made by any Person not a party hereto against the Indemnified Party asserts that the Stockholder have become obligated to (a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," in each case as the context so requires”), such Indemnified Party shall give written notice to the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so must notify the Indemnifying Party shall not relieve them from any liability that it or he may have to indemnifying party hereunder (the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each “Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any ”) in writing of such Third Party Claim at his or its sole cost and expense. Such Indemnified (setting forth in reasonable detail the facts giving rise to such Third Party shall have Claim (to the right, but not extent known by the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice ) and shall in any event cooperate with and assist the Indemnifying Party amount or estimated amount (to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against estimable) of Losses arising out of such Third Party Claim, ) promptly (and in any event within five Business Days) after receipt by such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result notice of such Third Party Claim. Failure Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly (and in any event within ten Business Days) after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party to the extent relating to the Third Party Claim; provided that the failure to so notify an Indemnifying party or to deliver copies of notices of documents to the Indemnifying party shall not relieve the Indemnifying Party to notify such Indemnified Party of its or their election obligations hereunder except to defend any such the extent that (and only to the extent that) the Indemnifying Party has been materially prejudiced thereby.
(b) If a Third Party Claim within fifteen (15) days after notice thereof shall have been given to is made against an Indemnified Party, the Indemnifying Party shall be deemed entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party. If the Indemnifying Party assumes the defense of a Third Party Claim in accordance with this Section 7.03(b), the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses incurred by the Indemnified Party in connection with the defense thereof. Any such participation or assumption shall not constitute a waiver by the Indemnifying Party any party of its or their right to defend any attorney-client privilege in connection with such Third Party Claim. If the Indemnifying Party assumes the defense of a Third Party Claim in accordance with this Section 7.03(b), the particular 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. If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the Indemnified Parties shall cooperate 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 that are reasonably relevant to such Third Party Claim, and making employees reasonably available at such times and places as may be reasonably necessary to defend against such Third Party Claim for the purpose of providing additional information, explanation or testimony in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed). If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnifying Party shall notnot settle such Third Party Claim without the consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), except that the Indemnifying Party shall have the right to settle such Third Party Claim without the consent of the Indemnified Party if such settlement (i) does not involve any admission by the Indemnified Party of any violation of criminal Law, (ii) involves solely the payment of money damages by the Indemnifying Party and does not involve any relief against the Indemnified Party, and (iii) provides a complete release of the Indemnified Party in the defense of connection with such Third Party Claim, consent to entry of .
(c) In the event any judgment or enter into Indemnified Party has a claim against any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which under Section 7.01 that does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party involve a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled deliver notice of such claim to have sole control over, the defense or settlement of any Third applicable Indemnifying Party Claim (setting forth in reasonable detail the facts giving rise to such claim (to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of known by the Indemnified Party) and the amount or estimated amount (to the extent reasonably estimable) of Losses arising out of such claim) promptly (and in any event within ten Business Days) after becoming aware of such claim; provided that the failure to so notify an Indemnifying party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that (and only to the extent that) the Indemnifying Party has been materially prejudiced thereby.
Appears in 1 contract
Sources: Unit Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
Procedures. If (ia) Subject to Section 10.4(b), any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party claim for recovery pursuant to SECTION 9.1this Article X will be made promptly after discovery of the circumstances underlying such claim in a written statement signed by the Party seeking indemnification, which will specify in reasonable detail each individual item of Loss and the estimated amount thereof, the date such item of Loss arose or if the facts giving rise to such claim were discovered, the basis for any Stockholderalleged liability and the nature of the breach or claim to which each such item is related.
(b) The Party seeking indemnification will give the indemnifying Party(s) prompt notice of any third party claim, action or proceeding which might give rise to liability of the indemnifying Party(s) for indemnification hereunder. If the indemnifying Party(s) contest any third party claim, it will have the option to defend (retaining counsel reasonably acceptable to the indemnified Party), at the indemnifying Party's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9expense, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give written notice to the Indemnifying Party of its or his obligation to provide indemnification hereundermatter, provided that any failure to so notify the Indemnifying indemnified Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall will have the right, but not the obligationat its own cost and expense, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third claim. However, notwithstanding the preceding sentence, (a) if the indemnifying Party Claimelects not to defend the claim, consent (b) elects to entry defend such action with counsel not reasonably acceptable to the indemnified party, or (c) if the claim has been brought or asserted against the indemnifying Party(s) as well as the indemnified Party and such indemnified Party reasonably concludes that there may be one or more factual or legal defenses available to it that are in conflict with those available to the indemnifying Party(s) and the indemnifying Party is unwilling to raise such defenses, then the indemnified Party may elect to conduct its defense on its own behalf, in which case the reasonable fees and expenses of the indemnified Party's counsel will be at the expense of the indemnifying Party(s). In the latter event, the indemnified Party may settle such claim, after giving notice of such proposed settlement to the indemnifying Party, on such terms as the indemnified Party may reasonably deem appropriate and no such action taken by the indemnified Party in defending or settling such claim will release the indemnifying Party of any judgment or enter into any settlement, except with obligation hereunder. Except under the written consent of such Indemnified Party. In additioncircumstances described in the preceding sentence, the Indemnifying indemnified Party shall will not enter into any settlement of any Third Party Claim (except with agreement without the indemnifying Party's consent which will not be unreasonably withheld or delayed. The indemnifying Party(s) will not, without the prior written consent of the indemnified Party (which will not be unreasonably withheld), enter into any settlement of a claim, if pursuant to or as a result of such Indemnified Party) which settlement, injunctive or other equitable relief will be imposed against the indemnified Party or if such settlement does not include as an unconditional term thereof expressly unconditionally release the giving by the claimant indemnified Party from all liabilities or the plaintiff obligations with respect to such Indemnified claim, with prejudice. The indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding and the foregoing, indemnifying Party(s) will cooperate with the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense each other in the defense of)defense, and the Indemnified Party shall be entitled to have sole control over, the defense compromise or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partyclaim for which indemnification is sought.
Appears in 1 contract
Procedures. If (ia) In order for a party (the “Indemnified Party”) to be entitled to any Stockholder Event indemnification provided for under this Agreement in respect of, arising out of Breach occurs or is alleged and involving a UAG Loss or a claim or demand made by any Person against the Indemnified Party asserts that the Stockholder have become obligated to (a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," in each case as the context so requires”), such Indemnified Party shall give deliver notice thereof to the Stockholder Agent, on behalf of the Stockholders, or to Acquiror, as applicable (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice to of the Third Party Claim and shall provide the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice shall not relieve them release the Indemnifying Party from any liability that it or he may have its obligations under this Article VII except to the Indemnified extent that the Indemnifying Party under this ARTICLE 9is materially prejudiced by such failure. If any insurance carrier is obligated or agrees to defend any Third Party Claim in connection with any attempt to obtain insurance coverage with respect to such notice relates to a Third Party Claim, each such defense shall be tendered to such insurance carrier and the rights of the parties among themselves regarding the assumption and control of such defense shall, as among one another, be subject to the requirements of such insurance carrier.
(b) If the Indemnifying Party, jointly and severally, agrees Party acknowledges in writing its obligation to defend, contest or otherwise protect such indemnify the Indemnified Party against any such Losses that may result from a Third Party Claim at his or its sole cost and expense. Such Indemnified pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party as promptly as practicable but not within 45 days of receipt of notice from the obligationIndemnified Party of the commencement of such Third Party Claim, to participate at its own expense in assume the defense thereof by counsel at the expense of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and reasonably satisfactory to the extent reasonably possibleIndemnified Party. 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 failed to assume the defense thereof. If the Indemnifying Party fails timely does not expressly elect to defend, contest or otherwise protect against assume the defense of such Third Party ClaimClaim within the time period and otherwise in accordance with this Section 7.4(b), such the Indemnified Party shall have the sole right to do so, including, without limitation, assume the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or defense of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the particular Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall not, in without the defense prior written consent of such Third Party Claimthe Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment or enter into any settlement, except with the written consent of respect to such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim if such settlement, compromise or judgment (except with the written consent A) involves a finding or admission of such Indemnified Partywrongdoing, (B) which does not include as an unconditional term thereof the giving written release by the claimant or plaintiff of the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim or (C) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder. If the Indemnified Party assumes the defense, the Indemnified Party may agree to any monetary settlement of, or the entry of any judgment arising from, any such Third Party Claim, but in the absence of the written consent of the Indemnifying Party, which shall not be unreasonably withheld, conditioned or delayed, no settlement shall be determinative of the amount of Losses an Indemnified Party is entitled to recover pursuant to this Article VII. The non-controlling party may participate in such defense at its own expense. The controlling party shall keep the non-controlling parties advised of the status of such Third Party Claim and the defense thereof. The non-controlling parties shall reasonably cooperate with and assist the controlling party in the defense of such Third Party Claim. The fees and expenses of counsel to the Indemnified Party with respect to a Third Party Claim shall be considered Losses for purposes of this Agreement. Notwithstanding the foregoing, no Stockholders or Stockholder Agent shall be entitled to (a) control any claim relating to intellectual property matters or for Taxes for any period after the Closing Date, or (b) settle, either administratively or after the commencement of litigation, any claim for Taxes which could adversely affect the liability of the Company for Taxes for any period (or portion thereof) after the Closing Date, without the prior written consent of Acquiror, which consent shall not be unreasonably withheld.
(c) If any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim with reasonable promptness to the Indemnifying Party. The failure to provide such notice, however, shall not release the Indemnifying Party from its obligations under this Article VII, except to the extent that the Indemnifying Party is materially prejudiced by such failure, and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VII.
(d) If the Indemnifying Party does not notify the Indemnified Party within 30 days following receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall not be entitled obligated to control (but shall be entitled pay the amount of such liability to participate at their own expense in the defense of), and the Indemnified Party on demand, which may be effected as contemplated in Section 7.5(b). If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount (including by offset) promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
(e) The indemnification required hereunder in respect of a Third Party Claim shall be entitled made, subject to this Section 7.4(e), first by prompt offset against the Indemnity Holdback (by forfeiture and cancellation of the Acquiror Common Stock) in an amount equal to the Losses as determined based upon the Claim Stock Value, or where the Indemnity Holdback is insufficient to cover indemnifiable Losses or a Third Party Claim, against any Contingent Payment payable to the Stockholders, as and when invoices are received by the Indemnifying Party or Losses incurred have sole control overbeen notified to the Indemnifying Party, subject to Section 7.4(b) and (c).
(f) The Indemnifying Party shall not require that any Action be made or brought against any other Person before Action is brought or claim is made against it hereunder by the Indemnified Party.
(g) Notwithstanding the provisions of Section 9.9, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere.
(h) Any Taxes that are the responsibility of the Stockholders pursuant to Section 7.2 shall be paid to Acquiror or Surviving Corporation no later than five (5) days prior to the due date for the payment of such Taxes but at least ten (10) days after receipt of written notice of the amount of such Taxes, whichever is later, and to the extent such Taxes are not paid to Acquiror or Surviving Corporation on or prior to the applicable due date, the defense amount of such Taxes shall be indemnifiable hereunder and bear interest at the rate of ten percent (10%) per annum, commencing on the applicable due date until the date of payment.
(i) Pending the resolution or settlement of any Third Party Claim dispute with respect to a claim for indemnification, to the extent of such unresolved dispute, no payment for indemnification must be made and no Stock Consideration that may be the Third Party Claim seeks an subject of such pending dispute held in the Indemnity Holdback on the date of notification of the indemnification claim shall be forfeited and cancelled nor shall be released to any Indemnified Party, Acquiror or any Stockholder nor shall any amount of Contingent Payment necessary for full recovery of indemnifiable Losses be released. Such dispute shall be deemed to be resolved upon (i) the mutual agreement of Acquiror and the Stockholder Agent, or (ii) a final, non-appealable order, injunction decree or other equitable relief against judgment of a court of competent jurisdiction, or if agreed by the Indemnified Party whichparties to such dispute, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partya third party dispute resolution mechanism.
Appears in 1 contract
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and a UAG In order for the Indemnified Party asserts that to ---------- be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim made by any person against the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires"), such Indemnified Party shall give must notify the Indemnifying Party in writing of the Third Party Claim (a "Claim Notice") promptly following receipt by such Indemnified Party of written notice of the Third Party Claim, which notification, to be a valid Claim Notice, must be accompanied by a copy of the written notice of the Third Party Claimant asserting the Third Party Claim; provided, however, that failure to give such -------- ------- notification promptly (so long as a valid Claim Notice is given before the expiration of the applicable period) shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been prejudiced as a result of such failure. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party copies of its or his obligation all other notices and documents (including court papers) received by the Indemnified Party relating to provide indemnification hereunderthe Third Party Claim.
(b) If a Third Party Claim is made against an Indemnified Party, provided the Indemnifying Party shall 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; provided, however, that any failure such counsel is not reasonably -------- ------- objected to by the Indemnified Party. Should the Indemnifying Party so notify elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not relieve them from any liability that it or he may have be liable to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such for any legal expenses incurred by the Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in connection with the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possiblethereof, except as provided below. If the Indemnifying Party fails timely to defendassumes such defense, contest or otherwise protect against such Third Party Claim, such the Indemnified Party shall have the right to do soparticipate in the defense thereof and to employ counsel, includingat its own expense, without limitation, separate from the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from counsel employed by the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be deemed a waiver liable for the reasonable fees and expenses of counsel employed by the Indemnified Party (provided that the incurrence of such fees and expenses of counsel was reasonably necessary to respond timely to legal process) for any period after the Claim Notice is given during which the Indemnifying Party of its or their right has not assumed the defense thereof if and to defend the extent that the Indemnifying Party is responsible to indemnify for such Third Party Claim. If the Indemnifying Party assumes does not assume the defense of a Third Party Claim within 30 days after the particular giving by the Indemnified Party to the Indemnifying Party of a valid Claim Notice with respect to the Third Party Claim, the Indemnifying Party shall notbe liable to the Indemnified Party for all fees and expenses of counsel employed by the Indemnified Party if and to the extent that the Indemnifying Party is responsible to indemnify for such Third Party Claim; provided, however, such counsel is not reasonably objected to by the Indemnifying Party. If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnified Parties shall cooperate 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 which are relevant to such Third Party Claim, consent and making employees available on a mutually convenient basis to entry provide additional information and explanation of any judgment material provided hereunder and to act as a witness or enter into respond to legal process. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld). If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, except with the written consent compromise or discharge of such Indemnified Party. In addition, a Third Party Claim that the Indemnifying Party shall not enter into any settlement may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of connection with such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and which releases the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any completely in connection with such Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified PartyClaim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Franklin Electronic Publishers Inc)
Procedures. If (ia) In order for a party (the “Indemnified Party”) to be entitled to any Stockholder Event indemnification provided for under this Agreement in respect of, arising out of Breach occurs or is alleged and relating to or involving a UAG Loss or a claim or demand made by any person against the Indemnified Party asserts that the Stockholder have become obligated to (a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," in each case as the context so requires”), such Indemnified Party shall give deliver notice thereof to the Securityholder Representative, on behalf of the Holders, Optionholders and Warrantholder, or to the Parent, as applicable (the “Indemnifying Party”) with reasonable promptness after receipt by such Indemnified Party of written notice to of the Third Party Claim and shall provide the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not relieve them release the Indemnifying Party from any liability that it or he may have of its obligations under this Article VIII except to the Indemnified extent that the Indemnifying Party under this ARTICLE 9. is materially prejudiced by such failure.
(b) If such notice relates the Indemnifying Party acknowledges in writing its obligation to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such indemnify the Indemnified Party against any such and all Losses that may result from a Third Party Claim that is exclusively for civil monetary damages at his or its sole cost and expense. Such Indemnified law pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party upon written notice to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof within 15 days of receipt of notice from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense commencement of such Third Party Claim, consent to entry assume the defense thereof at the expense of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third with counsel selected by the Indemnifying Party Claim (except with and reasonably satisfactory to the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in assume the defense of)of any Third Party Claim for equitable or injunctive relief or any claim that would impose criminal liability or damages, and the Indemnified Party shall be entitled have the right to have sole control overdefend any such Third Party Claim at the expense of the Indemnifying Party if and to the extent such Third Party Claim gives rise to indemnifiable Losses. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 8.4(b), the Indemnified Party shall have the sole right to assume the defense or settlement of and to settle such Third Party Claim and, in any such case, shall (x) keep the Securityholder Representative informed of all material developments relating to such Third Party Claim and (y) promptly provide to the Securityholder Representative copies of all pleadings, notices and communications with respect to such Third Party Claim to the extent that receipt of such documents does not waive any privilege. Notwithstanding anything to the contrary in this Agreement, in the event that the defense of any Third Party Claim is conducted by the Indemnified Party in accordance with this Section 8.4(b), the Indemnified Party shall not consent to the entry of any judgment or enter into any settlement or compromise of such Third Party Claim without the prior written consent of the Securityholder Representative (it being understood and agreed that the Securityholder Representative may withhold consent to any requested settlement if the Securityholder Representative believes in good faith that there is not any underlying basis for indemnification under Section 8.2 with respect to such settlement and absent such consent, the mere existence of such Third Party Claim shall not be deemed indicative of the existence or amount of indemnifiable Losses relating to such Third Party Claim). If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim seeks an order, injunction or other equitable relief against (including any impleaded parties) include both the Indemnified Party whichand the Indemnifying Party, if successfuland the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, could materially interfere the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the businessIndemnifying Party in such defense and make available to the Indemnifying Party all witnesses, operationspertinent records, assetsmaterials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, condition (financial or otherwise) or prospects the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or judgment (A) involves a finding or admission of wrongdoing, (B) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liability in respect of such Third Party Claim or (C) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be fully indemnified hereunder.
(c) Subject to the limitations set forth herein, the indemnification required hereunder in respect of a Third Party Claim shall be made by prompt payment by the Escrow Agent (to the extent of any amounts then held in the Escrow Fund, if applicable) or the Indemnifying Party (to the extent of any amounts not then held in the Escrow Fund, if applicable) of the amount of actual Losses in connection therewith only to the extent such Losses have been determined to be indemnifiable Losses hereunder pursuant to the terms hereof, including that any dispute regarding such characterization has been resolved according to Section 10.10.
(d) The Indemnifying Party shall not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(e) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver written notice of such claim with reasonable promptness upon becoming aware of such claim to the Indemnifying Party. The failure to provide such written notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VIII and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VIII, except in each case to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party does not notify the Indemnified Party within 30 days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such claim specified by the Indemnified Party in such written notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
Appears in 1 contract
Sources: Merger Agreement (AOL Inc.)
Procedures. Claims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) If any Person entitled to seek indemnification under Section 7.2 and Section 7.3 (an “Indemnified Party”) receives notice of the assertion or commencement of any claim asserted against an Indemnified Party by a third party (“Third Party Claim”) in respect of any matter that is subject to indemnification under Section 7.2 or Section 7.3 the Indemnified Party shall promptly (i) any Stockholder Event of Breach occurs or notify the party against whom indemnification is alleged and a UAG Indemnified Party asserts that sought (the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "“Indemnifying Party," and any UAG ”) of the Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give written notice (ii) transmit to the Indemnifying Party a written notice (“Claim Notice”) describing in reasonable detail the nature of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying a copy of all papers served with respect to such claim (if any), the Indemnified Party, jointly and severally, agrees ’s good faith estimate of the amount of Damages attributable to defend, contest or otherwise protect such Indemnified Party against any such the Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not basis of the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and ’s request for indemnification under this Agreement. Failure to timely provide such Claim Notice shall in any event cooperate with and assist not affect the right of the Indemnified Party’s indemnification hereunder, except to the extent the Indemnifying Party to the extent reasonably possible. If the is materially prejudiced by such failure.
(b) The Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, defend the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend against such Third Party Claim. If the Indemnifying Party assumes notifies the Indemnified Party that the Indemnifying Party elects to assume the defense of the particular Third Party Claim, then the Indemnifying Party shall not, in have the defense of right to defend such Third Party ClaimClaim with counsel selected by the Indemnifying Party (who shall be reasonably satisfactory to the Indemnified Party), consent by all appropriate proceedings, to entry a final conclusion or settlement at the discretion of any judgment or enter into any settlement, except the Indemnifying Party in accordance with the written consent this Section 7.4(b). The Indemnifying Party shall have full control of such Indemnified Party. In additiondefense and proceedings, including any compromise or settlement thereof; provided that the Indemnifying Party shall not enter into any settlement agreement without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed); provided further, that such consent shall not be required if (i) the settlement agreement contains a complete and unconditional general release by the third party asserting the claim to all Indemnified Parties affected by the claim and (ii) the settlement agreement contemplates only the payment of monetary damages by the Indemnifying Party or its Affiliates. Subject to the foregoing, if requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to use Reasonable Efforts to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled elects to control (but shall be entitled to participate at their own expense in contest, including the defense of), and making of any related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person. The Indemnified Party shall be entitled to have sole control overmay participate in, the but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 7.4(b), and the extent Indemnified Party shall bear its own costs and expenses with respect to such participation.
(c) If the Indemnifying Party does not notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 7.4(b), then the Indemnified Party shall have the right to defend, and be reimbursed for its reasonable cost and expense (but only if the Indemnified Party is actually entitled to indemnification hereunder) in regard to the Third Party Claim seeks an order, injunction or other equitable relief against with counsel selected by the Indemnified Party which(who shall be reasonably satisfactory to the Indemnifying Party), by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party. In such circumstances, the Indemnified Party shall defend any such Third Party Claim in good faith and have full control of such defense and proceedings; provided, however, that the Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed). If requested by the Indemnified Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to use Reasonable Efforts to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party elects to contest, including the making of any related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 7.4(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation.
(d) Any claim by an Indemnified Party on account of Damages that does not result from a Third Party Claim (a “Direct Claim”) must be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than forty-five (45) days after an officer of the Indemnified Party becomes aware of such Direct Claim. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, include copies of all available material written evidence thereof and indicate the estimated amount, if successfulreasonably practicable, could materially interfere of Damages that have been or may be sustained by the Indemnified Party. The Indemnifying Party will have a period of twenty (20) Business Days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such twenty (20) Business Day period, the Indemnifying Party will be deemed to have rejected such claim, in which event the Indemnified Party will be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.
(e) Any indemnification payment made pursuant to this Agreement shall be net of (i) any insurance proceeds actually realized by and paid to the Indemnified Party in respect of such claim and (ii) any indemnification or reimbursement payments actually received or recovered, if recoverable, by the Indemnified Party from third parties with respect to such Damages. The amount of any Damages shall take into account any net Tax benefits attributable to the business, operations, assets, condition circumstance or event giving rise to such Damages and any Tax costs attributable to the receipt of indemnity payments hereunder. The Indemnified Party shall use Reasonable Efforts to collect any amounts to which they may be entitled under insurance policies or from third parties (financial pursuant to indemnification arrangements or otherwise) with respect to such Damages.
(f) Except with respect to the EPA Enforcement Action, no Indemnified Party shall be entitled to bring a claim for indemnification for any breach or prospects inaccuracy of any representation, warranty or covenant if such Indemnified Party had Knowledge of such breach or inaccuracy as of the Effective Date or if the facts or circumstances underlying such breach or inaccuracy are disclosed in the Disclosure Schedules.
(g) Any Indemnified Party that becomes aware of Damages for which it seeks indemnification under this ARTICLE VII shall be required to use Reasonable Efforts to mitigate the Damages, including taking any actions reasonably requested by, and at the expense of, the Indemnifying Party, and the Indemnified Party shall not have any right to indemnification for any Damages to the extent that it is attributable to any Indemnified Party’s failure to use Reasonable Efforts to mitigate. The Indemnified Party shall not have any right to indemnification under this ARTICLE VII with respect to Damages to the extent that the Damages were materially and directly exacerbated by any action taken by any Indemnified Party for the first time on or after the Closing.
Appears in 1 contract
Procedures. If (i) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Each Indemnified Party shall give written notice to each ---------- Indemnifying Party promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense, or if it so elects, assume the defense thereof by of any such claim and any action or proceeding resulting therefrom, including the employment of counsel and the payment of all expenses. The failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party from its obligations to indemnify such Indemnified Party, except to the extent the Indemnified Party's choice and shall in any failure to so notify actually prejudices the Indemnifying Party's ability to defend against such claim, action or proceeding. In the event cooperate with and assist that the Indemnifying Party elects to assume the extent reasonably possible. If the Indemnifying Party fails timely to defenddefense in any action or proceeding, contest or otherwise protect against such Third Party Claim, such an Indemnified Party shall have the right to do soemploy separate counsel in any such action or proceeding and to participate in the defense thereof, including, without limitation, but such Indemnified Party shall pay the right fees and expenses of such separate counsel unless (i) the Indemnifying Party has agreed to make pay such fees and expenses or (ii) the named parties to any compromise such action or settlement thereofproceeding (including any impleaded parties) include such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that there may be entitled a conflict of interest between such Indemnified Party and the Indemnifying Party in the conduct of the defense of such action (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to recover employ separate counsel at the entire Cost thereof from expense of the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes not assume the defense of the particular Third Party Claimsuch action or proceeding on such Indemnified Party's behalf, it being understood, however, that the Indemnifying Party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Parties, which firm shall be designated in writing by the applicable Indemnified Parties). No Indemnifying Party, in the defense of any such Third Party Claimclaim or litigation, shall, except with the consent of the Indemnified Party, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party of a full release from all liability in respect of to such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense claim or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partylitigation.
Appears in 1 contract
Procedures. If (ia) any Stockholder Event The indemnified party shall give prompt written notice to the indemnifying party within ten (30) days after becoming aware of Breach occurs or is alleged a claim as to which indemnity may be sought and ten (10) days after receipt of notice of a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun(as defined herein), made or instituted including as a result of which any demand, suit, claim or assertion of liability by third parties that is subject to indemnification hereunder (a “Claim”), but a failure in good faith to give such notice or delaying such notice shall not affect the Stockholder indemnified party’s rights or the indemnifying party’s obligations except to the extent the indemnifying party’s ability to remedy, contest, defend or settle with respect to such Claim is thereby prejudiced. The Claim notice (“Claim Notice”) must (A) describe with reasonable particularity the circumstances supporting the indemnified party’s belief that it is entitled to indemnification under this Article IX, (B) if a Third-Party Claim, deliver copies of any documents served on the indemnified party, (C) provide material written evidence related to the Claim (to the extent feasible) and (D) estimate the amount, if reasonably practicable and feasible, of the Damages that may become obligated be sustained by the indemnified party.
(b) The indemnifying party shall have the right to undertake the defense or opposition to a UAG Indemnified Party hereunder, or third party claim (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," ”) with counsel selected by it (such expenses to be included in each case as the context so requires), calculation of Damages) by providing notice of such Indemnified Party shall give written notice to election within ten (10) days after receipt of the Indemnifying Party of its or his obligation to provide indemnification hereunder, Claim Notice; provided that any failure to so notify the Indemnifying Party indemnifying party shall not relieve them from any liability that it have the right to defend or he may have to direct the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against defense of any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim that seeks an order, injunction or other equitable relief against the Indemnified indemnified party. If such Third Party whichClaim is asserted directly by or on behalf of a Person that is a supplier or vendor of the Company, if successfulto the extent the Company or the Owner are the indemnifying party, could materially interfere the Company or the Owner shall use reasonable efforts seek input from Purchaser in connection with such Claim. In the event that the indemnifying party does not undertake such defense or opposition in a reasonably timely manner, the indemnified party may undertake the defense, opposition, compromise or settlement of such Third Party Claim with counsel selected by the indemnified party, with the business, operations, assets, condition indemnifying party liable for all reasonable legal costs and expenses of legal counsel (financial or otherwise) or prospects subject to the right of the Indemnified Partyindemnifying party to assume defense of or opposition to such Claim at any time prior to settlement, compromise or final determination thereof).
(c) Anything herein to the contrary notwithstanding:
(i) the indemnified party shall have the right, at its own cost and expense, to participate in the defense, opposition, compromise or settlement of the Third Party Claim; provided that if in the reasonable opinion of counsel to the indemnified party, (A) there are legal defenses available to the indemnified party that are different from or additional to those available to the indemnifying party or (B) there exists a conflict of interest between the indemnifying party and the indemnified party that cannot be reasonably waived, the indemnifying party shall be liable for the reasonable fees and expenses of counsel to the indemnified party in each jurisdiction for which the indemnified party reasonably determines that counsel is required;
(ii) the indemnifying party shall not, without the indemnified party’s written consent (which shall not be unreasonably delayed, conditioned or withheld), settle or compromise any Third Party Claim or consent to entry of any judgment to the extent (A) the Third Party Claim seeks damages in addition to monetary damages and (B) such settlement does not provide for the unconditional release of the indemnified party from all liabilities and obligations in connection with such Third Party Claim;
(iii) in the event that the indemnifying party undertakes defense of or opposition to any Third Party Claim, the indemnified party, by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the indemnifying party and its counsel concerning such Third Party Claim and the indemnifying party and the indemnified party and their respective counsel shall cooperate in good faith with respect to such Third Party Claim including, making available records relating to such Third-Party Claim and furnishing management employees without expense of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third-Party Claim;
(iv) To the extent that the indemnifying party makes or is required to make any indemnification payment to the indemnified party, the indemnifying party shall be entitled to exercise, and shall be subrogated to, any rights and remedies (including rights of indemnity, rights of contributions, and other rights of recovery) that the indemnified party may have against any other Person with respect to any Damages to which such indemnification payment is directly or indirectly related.
Appears in 1 contract
Sources: Asset Purchase Agreement (First Watch Restaurant Group, Inc.)
Procedures. If (ia) In respect of a claim arising out of or involving a Loss by any Stockholder Event of Breach occurs or is alleged and a UAG Person against an Indemnified Party asserts that the Stockholder have become obligated to (such claim a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," in each case as the context so requires”), such Indemnified Party shall give written notice deliver a Claim Notice in respect thereof to Seller (the “Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to Party”) with reasonable promptness after receipt by the Indemnified Party under this ARTICLE 9. If such of notice relates to a of the Third Party Claim, each and shall provide the Indemnifying Party with (i) the specific subsection of Section 8.2 upon which the Indemnified Party is basing its claim and, if applicable, the representation and warranty or covenant alleged to have been breached by the Indemnifying Party; (ii) a reasonably detailed description of the facts and circumstances giving rise to the claim to the extent that such information is available to the Indemnified Party; and (iii) to the extent estimable, jointly and severallya good faith estimate of the total amount of, agrees the Losses actually incurred or expected to defend, contest or otherwise protect such be incurred by the Indemnified Party against with respect to such claim. The failure to timely deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Section 8 except to the extent that the Indemnifying Party is materially prejudiced by such failure. The existence of any Third Party Claim at his shall not create a presumption of any indemnification obligation of any party to this Agreement or its sole cost and expense. Such Indemnified any breach of any representations, warranties or covenants set forth in this Agreement or any Ancillary Agreement.
(b) The Indemnifying Party shall have the right, but not upon written notice to the obligationIndemnified Party within 30 days of receipt of a Claim Notice from the Indemnified Party in respect of such Third Party Claim, to participate at its own expense in assume the defense thereof by counsel at the expense of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the extent reasonably possibleIndemnified Party. If the Indemnifying Party fails timely does not expressly elect to defendassume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 8.3(b), contest or otherwise protect against the Indemnified Party shall have the sole right to assume the defense of such Third Party Claim; provided, however, that any settlement of such Third Party Claim entered into by the Indemnified Party without the Indemnifying Party’s prior written consent (not to be unreasonably withheld, conditioned or delayed) shall not be determinative of the existence or amount of any indemnifiable Losses. The party not controlling the defense of the Third Party Claim shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such party unless, in the opinion of outside counsel to the Indemnified Party, it is advisable for the Indemnified Party to be represented by separate counsel due to actual or potential conflicts of interest, in which case the Indemnified Party shall have the right to do so, including, without limitation, employ counsel to represent it and in that event the right to make any compromise or settlement thereof, reasonable documented out-of-pocket fees and expenses of such Indemnified Party separate counsel shall be entitled to recover the entire Cost thereof from paid by the Indemnifying Party.
(c) The party not controlling the Third Party Claim (the “Non-Controlling Party”) shall reasonably cooperate with the party controlling the Third Party Claim (the “Controlling Party”) in such defense and make available to the Controlling Party all witnesses, includingpertinent records, materials and information in the Non-Controlling Party’s possession or under the Non-Controlling Party’s control relating thereto as is reasonably required by the Controlling Party; provided, however, that such actions and cooperation by the Non-Controlling Party will not unduly disrupt the operations of the Non-Controlling Party’s business or cause the Non-Controlling Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to Third Parties or otherwise cause any confidential information of the Non-Controlling Party to become public. The Controlling Party shall not, without limitationthe prior written consent of the Non-Controlling Party (which consent shall not be unreasonably withheld, attorneys' feesconditioned or delayed), disbursements and amounts paid (enter into any settlement or compromise or consent to the entry of which such Indemnified Party has become obligated any judgment with respect to pay) as the result of such Third Party Claim. Failure by ; provided, however, that, if an Indemnifying Party is proposing to enter into any settlement or compromise or consent to the entry of any monetary judgment with respect to such Third Party Claims, such consent of Indemnified Party shall not be required if (i) the Indemnifying Party agrees to notify pay or cause to be paid any amounts payable pursuant to such settlement, compromise or judgment (net of applicable baskets and deductibles set forth in Section 8.4) and such settlement, compromise or judgment includes no admission of liability by or other obligation on the part of the Indemnified Party, and (ii) such settlement, compromise or judgment includes no finding or admission of liability by or other obligation or equitable remedies on the part of the Indemnified Party of its or their election with respect to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any and (iii) such claim, settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as compromise or judgment includes an unconditional term thereof the giving written release by the claimant or plaintiff of the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim.
(d) An Indemnified Party seeking indemnification in respect of, arising out of or involving a Loss that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim”) shall deliver a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness, and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. Notwithstanding The failure to timely deliver a Claim Notice, however, shall not release the foregoingIndemnifying Party from any of its obligations under this Section 8 except to the extent that the Indemnifying Party is materially prejudiced by such failure. The Indemnified Party shall reasonably cooperate and assist the Indemnifying Party in determining the validity of any claim for indemnity by the Indemnified Party and in otherwise resolving such matters, including providing reasonable access to and copies of information, records and documents relating to such matters, furnishing employees to assist in the investigation, defense and resolution of such matters; provided, however, that such actions and cooperation by the Non-Controlling Party will not unduly disrupt the operations of the Non-Controlling Party’s business or cause the Non-Controlling Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to Third Parties or otherwise cause any confidential information of the Non-Controlling Party to become public. If the Indemnifying Party does not notify the Indemnified Party within 15 days following its receipt of a Claim Notice in respect of a Direct Claim that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such Direct Claim specified by the Indemnified Party in such Claim Notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall indemnify the Indemnified Party for such Losses (or, in the case of any notice in which the Losses (or any portion thereof) are estimated, the amount of such Losses (or such portion thereof) as finally determined) subject to the limitations of this Section 8. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall not be entitled to control indemnify the Indemnified Party for such Losses (but shall be entitled to participate at their own expense or, in the defense of)case of any notice in which the Losses (or any portion thereof) are estimated, the amount of such Losses (or such portion thereof) as finally determined) subject to the limitations of this Section 8, without prejudice to or waiver of the Indemnified Party’s claim for the difference. If the Indemnifying Party contests the payment of all or part of the claimed amount, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. If such dispute is not resolved within 30 days following the delivery by the Indemnifying Party of such response, the Indemnifying Party and the Indemnified Party shall each have the right to seek remedies in accordance with the provisions of Section 10.10.
(e) A Claim Notice shall, with respect to Third Party Claims, include copies of material communications and documentation, any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, bill or other document evidencing or asserting the same.
(f) To the extent the Indemnifying Party makes or is required to make any indemnification payment to the Indemnified Party, the Indemnifying Party will be entitled to have sole control overexercise, the defense or settlement and will be subrogated to, any rights and remedies (including rights of any Third Party Claim to the extent the Third Party Claim seeks an orderindemnity, injunction or rights of contribution and other equitable relief against rights of recovery) that the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects any of the Indemnified Party’s Affiliates may have against any other Person with respect to any Losses or circumstances to which such indemnification payment is directly or indirectly related. The Indemnified Party will take such actions as the Indemnifying Party may reasonably request for the purpose of enabling the Indemnifying Party to perfect or exercise the Indemnifying Party’s right of subrogation hereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tempest Therapeutics, Inc.)
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and In order for a UAG Buyer Indemnified Party asserts that (in such capacity, the Stockholder have become obligated “Indemnified Party”) to a UAG Indemnified Party pursuant be entitled to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted indemnification provided for under this Agreement as a result of which a Loss or a claim or demand made by any Person against the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," in each case as the context so requires”), such Indemnified Party shall give written deliver notice thereof to Seller (in such capacity, the “Indemnifying Party”) within 30 days of the actual receipt of the Third Party Claim by a responsible officer, describing in reasonable detail the nature of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Partyincluding the amount or the estimated amount of damages sought thereunder to the extent then ascertainable, jointly and severallyany other remedy sought thereunder to the extent known, agrees any relevant time constraints relating thereto and, to defendthe extent practicable, contest or otherwise protect such any other material details pertaining thereto; provided, that the failure of an Indemnified Party against any to give timely notice shall not affect its rights to indemnification under this Article VII except to the extent that the Indemnifying Party has been materially prejudiced by such Third Party Claim at his or its sole cost and expense. Such Indemnified failure.
(b) The Indemnifying Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party upon written notice to the extent reasonably possible. If Indemnified Party within 30 days of receipt of notice from the Indemnifying Indemnified Party fails timely to defend, contest or otherwise protect against of the commencement of such Third Party Claim, such Indemnified Party shall have to assume the right to do so, including, without limitation, defense thereof at the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from expense of the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure with counsel selected by the Indemnifying Party and reasonably satisfactory to notify such the Indemnified Party; provided, that it has acknowledged in writing to the Indemnified Party of its or their election to defend any that it is liable for such Third Party Claim within fifteen (15) days after notice thereof shall have been given pursuant to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claimthis Article VII. If the Indemnifying Party assumes the defense of such Third Party Claim, the particular Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party, except that if in the written advice of counsel to the Indemnified Party that representation of both parties by the same counsel would be inappropriate due to an actual, material conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, such Indemnifying Party shall be liable for the reasonable out-of-pocket fees and expenses of counsel to the Indemnified Party. If the Indemnifying Party does not acknowledge in writing that it is liable for such Third Party Claim or assume the defense and control of any Third Party Claim pursuant to this Section 7.2(b), the Indemnified Party shall be entitled to assume and control such defense (it being understood that (i) the Indemnified Party’s right to indemnification for a Third Party Claim shall not be adversely affected by the Indemnified Party’s assumption of the defense of such Third Party Claim and (ii) the Indemnifying Party shall reimburse the Indemnified Party for the out-of-pocket costs of defending against such Third Party Claim (including reasonable and documented attorneys’ fees and expenses to the extent that it is determined that such Indemnifying Party is liable under this Agreement with respect to such Third Party Claim)), but the Indemnifying Party may nonetheless elect to participate in the defense of such Third Party Claim with its own counsel and at its own expense. Each of the Indemnified Party and the Indemnifying Party shall reasonably cooperate with the other in defense of a Third Party Claim and make available to the other all witnesses, pertinent records, materials and information in its possession or under its control relating thereto as is reasonably required by the other.
(c) Notwithstanding the provisions of Section 7.2(b), if, in the reasonable and good faith judgment of the Indemnified Party, any Third Party Claim that relates to any amounts indemnifiable or potentially indemnifiable under this Article VII entails a material risk of (i) non-monetary sanctions being imposed on the Indemnified Party, (ii) criminal penalties or (iii) a finding or admission of any violation of Law or finding or admission of any wrongdoing by the Indemnified Party, the Indemnified Party shall have the right, at its option, to be represented by counsel selected by the Indemnified Party (which shall be at the Indemnifying Party’s expense), and by giving written notice to the Indemnifying Party, to take control of, the defense, negotiation or settlement of such Third Party Claim; provided, that each Indemnifying Party may participate in any such Third Party Claim with counsel selected by such Indemnifying Party and reasonably satisfactory to the Indemnified Party, which shall be at the Indemnifying Party’s own expense.
(d) If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall notnot agree to any settlement, in the defense compromise or discharge of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with Claim that (i) provides other than for monetary payment (paid by the Indemnifying Party) without the Indemnified Party’s prior written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim or (except with the written consent of such Indemnified Partyii) which does not include as an unconditional term thereof the giving of a release from all Liability with respect to such Third Party Claim by the applicable claimant or the plaintiff to such Indemnified Party that is or may be subject to the Third Party Claim, without such Indemnified Party’s prior written consent. Whether or not the Indemnifying Party assumes the defense of a full release from all Third Party Claim, the Indemnified Party shall not admit any liability in with respect of to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim for which the Indemnifying Party will be liable without the Indemnifying Party’s prior written consent, (which consent shall not be unreasonably withheld, conditioned or delayed).
(e) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim (a “Notice of Claim. Notwithstanding ”) describing in reasonable detail the foregoingbasis under this Agreement for making a claim of indemnification; provided, that the failure of an Indemnified Party to give a timely Notice of Claim under this clause (e) shall not affect its rights to indemnification under this Article VII.
(f) After final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the expiration of the time in which to appeal therefrom, or a settlement shall have been consummated, or the Indemnified Party and the Indemnifying Party shall not be entitled have arrived at a mutually binding agreement with respect to control (but shall be entitled to participate at their own expense in the defense of)each separate matter indemnified by an Indemnifying Party, and the Indemnified Party shall be entitled forward to have sole control over, the defense or settlement such Indemnifying Party notice of any Third sums due and owing by such Indemnifying Party Claim with respect to such matters (provided, that the failure of an Indemnified Party to give such notice shall not affect its rights to indemnification under this Article VII except to the extent the Third that such Indemnifying Party Claim seeks an order, injunction or other equitable relief against the Indemnified has been materially prejudiced by such failure) and each Indemnifying Party which, if successful, could materially interfere shall satisfy its obligations with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partyrespect thereto within 20 Business Days thereof.
Appears in 1 contract
Sources: Securities Purchase Agreement (Algonquin Power & Utilities Corp.)
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party A party seeking indemnification pursuant to SECTION 9.1, Sections 9.2 or if any Stockholder's Third Party Claim is begun, made 9.3 above or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or Section 4.9 hereof (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and ") shall give prompt notice to the Stockholder are sometimes referred to as an party from whom such indemnification is sought (the "Indemnifying Party," and ") of the assertion of any UAG Third Party Claim and claim or assessment, or the commencement of any Stockholder Third Party Claim is sometimes referred to as action, suit, audit or proceeding, by a third party in respect of which indemnity may be sought hereunder (a "Third Party Claim," in each case ") and will give the Indemnifying Party such information with respect thereto as the context so requires)Indemnifying Party may reasonably request, but no failure to give such Indemnified Party notice shall give written notice to relieve the Indemnifying Party of its or his obligation any liability hereunder (except to provide indemnification hereunder, provided that any failure to so notify the extent the Indemnifying Party shall not relieve them from any liability that it or he may have to has suffered actual prejudice thereby). Thereafter, the Indemnified Party under this ARTICLE 9. If such notice relates shall deliver to a the Indemnifying Party, within five business days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indem- 112 nified Party relating to the Third Party Claim, each . The Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not exercisable by written notice (the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party "Notice") to the extent reasonably possible. If Indemnified Party within 10 days of receipt of notice from the Indemnifying Indemnified Party fails timely to defend, contest of the commencement of or otherwise protect against such assertion of any Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in assume the defense of such Third Party Claim, consent using counsel selected by the Indemnifying Party and reasonably acceptable to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In additionShould 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 shall not enter into any settlement fail to assume the defense of any the Third Party Claim (except with within such 10-day period, the written consent Indemnified Party shall have the right to undertake the defense of such Third Party Claim on behalf of the Indemnifying Party. If the Indemnifying Party elects to assume the defense of any such Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or 113 settle, compromise or discharge, such Third Party Claim without the Indemnifying Party) which 's prior written consent. If the Indemnifying Party does not include as an unconditional term thereof elect to assume the giving by defense of any such Third Party Claim, the claimant or the plaintiff to such Indemnified Party a full release from all shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent, which consent will not be unreasonably withheld; provided that, if the Indemnifying Party fails to reaffirm its obligations to provide indemnification in respect of such Third Party Claim. Notwithstanding Claim if requested to do so by the foregoingIndemnified Party, the Indemnified Party may settle, compromise or discharge such Third Party Claim on commercially reasonable terms without the consent of the Indemnifying Party.
(b) The Indemnifying Party or the Indemnified Party, as the case may be, shall in any event have the right to participate, at its own expense, in the defense of any Third Party Claim which the other is defending.
(c) The Indemnifying Party, if it shall have 114 assumed the defense of any Third Party Claim in accordance with the terms hereof, shall have the right, upon five days prior written notice to the Indemnified Party, to consent to the entry of judgment with respect to, or otherwise settle such Third Party Claim provided the Indemnifying Party agrees that as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall not be entitled solely obligated to control (but shall be entitled to participate at their own expense in the defense of), satisfy and the Indemnified Party shall be entitled to have sole control over, the defense discharge such judgment or settlement of any Third Party Claim to the extent unless the Third Party Claim seeks an order, injunction involves equitable or other non-monetary damages. In the event such judgment or settlement involves equitable relief against or non-monetary damages and in the reasonable judgment of the Indemnified Party whichsuch judgment or settlement would have a continuing material adverse effect on the Indemnified Party's business (including any material impairment of its relationships with customers and suppliers), if successful, could materially interfere the consent to the entry of such judgment or such settlement may only be made with the business, operations, assets, condition (financial or otherwise) or prospects written consent of the Indemnified Party, which consent shall not be unreasonably withheld. 115
(d) Whether or not the Indemnifying Party chooses to defend or prosecute any Third Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. Such cooperation shall include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified 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, and the Indemnifying Party shall reimburse the Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith.
Appears in 1 contract
Procedures. If (ia) In case any Stockholder Event of Breach occurs claim is made, or any suit or action is alleged and commenced, against a UAG Bank Indemnified Party asserts that or Company Indemnified Party, the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result in respect of which the Stockholder indemnification may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of be sought under this ARTICLE 916 (including for the benefit of its officers, directors, employees, agents or representatives or any UAG Indemnified Party and Person claiming by or through any Stockholder Indemnified Party is sometimes referred to as an "of them) (the “Indemnified Party" and UAG ”) shall promptly give the other party (the “Indemnifying Party”) notice thereof and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give be entitled to participate in the defense thereof and, with prior written notice to the Indemnified Party given not later than twenty (20) days after the delivery of the applicable notice, to assume, at the Indemnifying Party’s expense, the defense thereof, with counsel reasonably satisfactory to such Indemnified Party. After notice from the Indemnifying Party to such Indemnified Party of its or his obligation election so to provide indemnification hereunderassume the defense thereof, provided that any failure to so notify the Indemnifying Party shall will not relieve them from any liability that it or he may have be liable to the such Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest Section for any attorneys’ fees or otherwise protect other expenses subsequently incurred by such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in connection with the defense thereof by counsel other than reasonable costs of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such investigation.
(b) The Indemnified Party shall have the right to do soemploy its own counsel if the Indemnifying Party elects to assume such defense, including, without limitation, but the right to make any compromise or settlement thereof, fees and expenses of such Indemnified Party counsel shall be entitled to recover at the entire Cost thereof from Indemnified Party’s expense, unless § the employment of such counsel has been authorized in writing by the Indemnifying Party, including§ the Indemnifying Party has not employed counsel to take charge of the defense within twenty (20) days after delivery of the applicable notice or, without limitationhaving elected to assume such defense, attorneys' feesthereafter ceases its defense of such action, disbursements and amounts paid (or of which such § the Indemnified Party has become obligated reasonably concluded that there may be defenses available to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party it which are different from or additional to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given those available to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, (in which case the Indemnifying Party shall not, in not have the right to direct the defense of such Third action on behalf of the Indemnified Party), in any of which event attorneys’ fees and expenses shall be borne by the Indemnifying Party.
(c) The Indemnifying Party Claimshall promptly notify the Indemnified Party if the Indemnifying Party desires not to assume, consent or participate in the defense of, any such claim, suit or action.
(d) The Indemnified Party or Indemnifying Party may at any time notify the other of its intention to entry settle or compromise any claim, suit or action against the Indemnified Party in respect of which payments may be sought by the Indemnified Party hereunder, and § the Indemnifying Party may settle or compromise any judgment such claim, suit or enter into action solely for the payment of money damages, but shall not agree to any settlement, except with other settlement or compromise without the prior written consent of such the Indemnified Party. In addition, which consent shall not be unreasonably withheld, and § the Indemnified Party may settle or compromise any such claim, suit or action solely for an amount not exceeding one thousand dollars ($1,000), but shall not settle or compromise any other matter without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld.
(e) Notwithstanding any provision contained in this Section 16.3 to the contrary, the Indemnifying Party shall not enter into knowingly take any settlement of position or action in any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff pending litigation that would be reasonably likely to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled adverse to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of without the Indemnified Party’s express prior written consent.
Appears in 1 contract
Sources: Credit Card Program Agreement (Ascena Retail Group, Inc.)
Procedures. If any party (ithe "Indemnitee") receives notice of any Stockholder Event claim or the commencement of Breach occurs any action or proceeding with respect to which the other party (or parties) is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which provide indemnification (the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred ") pursuant to as a "Third Party Claim," in each case as Sections 9.01 or 9.02, the context so requires), such Indemnified Party Indemnitee shall give written notice to the Indemnifying Party written notice thereof within a reasonable period of its time following the Indemnitee's receipt of such notice. Such notice shall describe the claim in reasonable detail and shall indicate the amount (estimated if necessary) of the Losses that have been or his obligation to provide indemnification hereunder, provided that any failure to so notify may be sustained by the Indemnitee. The Indemnifying Party shall not relieve them from any liability that it or he may have may, subject to the Indemnified Party under other provisions of this ARTICLE 9. If Section 9.03, compromise or defend, at such notice relates to a Third Party Claim, each Indemnifying Party's own expense and by such Indemnifying Party's own counsel, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have matter involving the right, but not asserted Liabilities of the obligation, to participate at its own expense Indemnitee in the defense thereof by counsel respect of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possiblea third-party claim. If the Indemnifying Party fails timely elects to defendcompromise or defend such asserted Liabilities, contest it shall within thirty (30) days (or otherwise protect against such Third Party Claimsooner, if the nature of the asserted Liabilities so requires) notify the Indemnitee of its intent to do so, and the Indemnitee, shall reasonably cooperate, at the request and reasonable expense of the Indemnifying Party, in the compromise of, or defense against, such Indemnified asserted Liabilities. The Indemnifying Party will not be released from any obligation to indemnify the Indemnitee hereunder with respect to a claim without the prior written consent of the Indemnitee, unless the Indemnifying Party delivers to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to or injunctive relief against the Indemnitee and a complete release of the Indemnitee with respect thereto. The Indemnifying Party shall have the right to do soconduct and control the defense of any third-party claim made for which it has been provided notice hereunder, includingother than a third-party claim with respect to breach of a representation or warranty contained in Section 3.15, without limitationwhich shall - 50 - be conducted and controlled by the Company, provided, that the Company shall act reasonably and in good faith in the conduct and control thereof and shall consult with the Indemnifying Parties with respect thereto. All costs and fees incurred with respect to any such claim will be borne by the Indemnifying Party. The Indemnitee will have the right to make any compromise or settlement thereofparticipate, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Partybut not control, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of at its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control overexpense, the defense or settlement of any Third such claim; provided, that if the Indemnitee and the Indemnifying Party Claim shall have conflicting claims or defenses, the Indemnifying Party shall not have control of such conflicting claims or defenses and the Indemnitee shall be entitled to appoint a separate counsel for such claims and defenses at the cost and expense of the Indemnifying Party. If the Indemnifying Party chooses to defend any claim, the Indemnitee shall make available to the extent the Third Indemnifying Party Claim seeks an orderany books, injunction records or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partydocuments within its control that are reasonably required for such defense.
Appears in 1 contract
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and a UAG An Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party seeking indemnification under Section 8.1 shall give prompt written notice to the Indemnifying Party of its or his obligation the assertion of any claim that does not involve a Proceeding brought by a third party. The notice shall describe in reasonable detail the nature of the claim, an estimate of the amount of Losses attributable to provide the claim to the extent feasible and the basis of the request for indemnification hereunderunder this Agreement.
(b) If an Indemnified Party receives notice of a Proceeding brought by a third party for which the Indemnified Party intends to assert an indemnification claim under Section 8.1 against the Indemnifying Party, provided that any failure then the Indemnified Party shall give notice of the Proceeding to so notify the Indemnifying Party no later than thirty (30) Business Days before the answer or other response to the Proceeding is required to be made. The Indemnifying Party shall not relieve them from assume the defense of any liability that it or he may have Proceeding by notice to the Indemnified Party under no later than fifteen (15) Business Days prior to the date by which an answer or other response to the Proceeding is required to be made. Any failure by either Party to give the requisite notice within the time specified in this ARTICLE 9. If such notice relates Section 8.3(b) shall not relieve the Indemnifying Party of the obligation to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such indemnify the Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, obligation to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist allow the Indemnifying Party to defend pursuant to this Section 8.3(b) except to the extent that the defense of any Proceeding is materially prejudiced by the delay. The Indemnifying Party shall utilize counsel reasonably possible. If satisfactory to the Indemnified Party.
(c) Notwithstanding the foregoing, if an Indemnified Party shows that a Proceeding will materially adversely affect it or its Affiliates in the operation of their respective businesses other than as a result of monetary damages for which it would be entitled to indemnification under this Article or if the Proceeding involves an assessment of Taxes solely against the Indemnified Party, the Indemnified Party may, by notice to the Indemnifying Party fails timely Party, assume the exclusive right to defend, contest but not compromise or otherwise protect against such Third Party Claimsettle, such Indemnified Party shall have Proceeding. If a compromise or settlement will adversely affect the right Indemnifying Party, and subject to do sothe terms hereof, including, without limitation, the right to make any compromise or settlement thereof, and of such Indemnified Party shall a Proceeding may only be entitled to recover made with the entire Cost thereof from consent of the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid .
(or of which such Indemnified Party has become obligated to payd) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claima Proceeding pursuant to Section 8.3(b), then the Indemnifying Party may defend and conduct any proceedings or negotiations in connection with the Proceeding, take all other required steps or proceedings to settle or defend any Proceeding, and to employ counsel to contest any Proceeding in the name of the Indemnified Party or otherwise; provided, however, (i) no compromise or settlement of any Proceeding may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, and (B) the sole relief provided is monetary damages that are in fact paid in full by the Indemnifying Party and (ii) the Indemnified Party will have no liability with respect to any compromise or settlement of such Proceeding effected without its consent.
(e) If the Indemnifying Party does not assume the defense of (having been given a proper opportunity to do so), or if after so assuming the Indemnifying Party fails properly to defend, any Proceeding, then the Indemnified Party may defend against any claim or Proceeding in a manner reasonably appropriate and the Indemnified Party may settle any claim or Proceeding on such terms as are reasonable in the circumstances (but subject to the provisions of this Article VIII, including Section 8.3(f)).
(f) The Indemnified Party shall not, have the right to participate in the defense of such Third Party Claim, consent any Proceeding related to entry any indemnified Losses at its sole cost and expense and the cost and expense of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party that participation shall not be entitled Losses subject to indemnification.
(g) In connection with any and all environmental matters for which Sellers must indemnify Buyer under this Article VIII, including, without limitation, claims relating to the presence or removal of Lime Kiln Dust on the Trapezoid Parcel for which Sellers must indemnify Buyer under Section 6.15 and/or Section 8.2(a):
(i) Subject to the last two sentences of this Section 8.3(g)(i), Buyer shall have the right to conduct and retain control over any action to investigate, evaluate, assess, test, monitor, remove, respond to, treat, a▇▇▇▇, remedy, correct, clean-up or otherwise remediate the release or presence of any Hazardous Substance or Lime Kiln Dust, correction of noncompliance or other action (but collectively, “Remedial Action”), including the right to (A) investigate any suspected contamination or noncompliance, (B) conduct and obtain any tests, reports, surveys and investigations, (C) contact, negotiate or otherwise deal with Governmental Authorities, (D) prepare any plan for such Remedial Action and (E) conduct or direct any such Remedial Action; provided that Buyer shall be entitled consult with Sellers in good faith, including providing Sellers the opportunity to review and comment on any plan for Remedial Action prior to submittal to any Governmental Authority and the opportunity to participate at their own expense in the defense ofmeetings with any Governmental Authority regarding Remedial Actions. Prior to incurring an obligation or material proposed expenditure for any Remedial Action under this Article VIII, Buyer will provide Seller with notice of its intention to do so (with adequate information relating to such proposed expenditure), and Seller shall have the Indemnified Party right to consent to such expenditure, which consent shall not unreasonably be withheld. Buyer shall apprise Sellers of any information regarding the undertaking, scheduling and execution of any Remedial Action and shall provide Seller with copies that it receives of all written reports associated with any Remedial Action. Neither Buyer nor any Affiliate of Buyer (including the Company) shall initiate any Remedial Action other than (a) as required by applicable Environmental Laws, (b) in connection with reasonable responses to any spill or emergency situation occurring within a reasonable period of time following such spill or emergency situation, or (c) reasonable Remedial Actions taken in good faith following the receipt of information that would lead a reasonable and responsible corporate citizen to believe that Remedial Action is advisable in the circumstances; provided, however, that following notice of the Remedial Action by Buyer to Sellers as required above, Buyer shall follow any commercially reasonable recommendations of Sellers which are designed to mitigate the risks of Environmental Liabilities resulting from such Remedial Actions. Notwithstanding any other provision of this Agreement to the contrary, neither Buyer nor any Affiliate of Buyer (including the Company) shall initiate any Remedial Action in connection with Lime Kiln Dust unless required to do so under any Environmental Law.
(ii) Sellers and Buyer agree that any Remedial Action shall be entitled the most cost-effective, commercially reasonable method under the circumstances and based upon the understanding that the Owned Real Property and Leased Real Property is and will continue to have sole control overbe used for industrial purposes. Any Remedial Action shall make maximum use of institutional controls, the defense or settlement of any Third Party Claim including, without limitation, deed restrictions, signs, fencing, buffers and controls, to the extent permitted by Governmental Authorities; provided that such institutional controls shall not unreasonably restrict or limit the Third Party Claim seeks an orderindustrial activities being performed by Buyer or the Company on the Owned Real Property or Leased Real Property.
(iii) Sellers and Buyer mutually agree to cooperate in connection with any indemnification claims.
(iv) Buyer shall not contact or importune any Governmental Authority in connection with any matter that will or could become the subject of a claim under Section 8.2(a), injunction or other equitable relief against unless required by Environmental Law. The rights and remedies for claims under Section 8.1(a) as set forth in this Agreement shall be the Indemnified Party which, if successful, could materially interfere exclusive remedy of Buyer with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partyrespect to environmental claims.
Appears in 1 contract
Sources: Stock Purchase Agreement (United States Lime & Minerals Inc)
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party A party seeking indemnification pursuant to SECTION 9.1, Sections 7.2 or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or 7.3 (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and ") shall give prompt notice to the Stockholder are sometimes referred to as an party from whom such indemnification is sought (the "Indemnifying Party," and ") of the assertion of any UAG Third Party Claim and claim or assessment, or the commencement of any Stockholder Third Party Claim is sometimes referred to as action, suit, audit or proceeding, by a third party in respect of which indemnity may be sought hereunder (a "Third Party Claim," in each case ") and will give the Indemnifying Party such information with respect thereto as the context so requires)Indemnifying Party may reasonably request, but no failure to give such Indemnified Party notice shall give written notice to relieve the Indemnifying Party of its or his obligation any liability hereunder (except to provide indemnification hereunder, provided that any failure to so notify the extent the Indemnifying Party shall not relieve them from any liability that it or he may have to has suffered actual prejudice thereby). Thereafter, the Indemnified Party under this ARTICLE 9. If such notice relates shall deliver to a the Indemnifying Party, within five (5) business days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim, each . The Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not exercisable by written notice (the obligation"Notice") to the Indemnified Party within thirty (30) days of receipt of notice from the Indemnified Party of the commencement or assertion of any Third Party Claim, to participate at its own expense in assume the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure using counsel selected by the Indemnifying Party and reasonably acceptable to notify such the Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to Party. Should the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right so elect to defend such Third Party Claim. If the Indemnifying Party assumes assume the defense of the particular a Third Party Claim, the Indemnifying Party shall notnot 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 shall fail to assume the defense of the Third Party Claim within such thirty (30) day period, in the Indemnified Party shall have the right to undertake the defense of such Third Party Claim on behalf of the Indemnifying Party. Regardless of whether the Indemnifying Party elects to assume the defense of any such Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge such Third Party Claim without the Indemnifying Party's prior written consent.
(b) The Indemnifying Party or the Indemnified Party, as the case may be, shall in any event have the right to participate, at its own expense, in the defense of any Third Party Claim which the other is defending.
(c) The Indemnifying Party, if it shall have assumed the defense of any Third Party Claim in accordance with the terms hereof, shall have the right, upon five (5) days prior written notice to the Indemnified Party, to consent to the entry of any judgment with respect to, or otherwise settle such Third Party Claim provided the Indemnifying Party agrees that as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge such judgment or enter into settlement unless (i) the Third Party Claim involves equitable or other non-monetary damages or (ii) in the reasonable judgment of the Indemnified Party such 41 49 settlement would have a continuing material adverse effect on the Indemnified Party's business (including any settlementmaterial impairment of its relationships with customers and suppliers), except in which case such settlement only may be made with the written consent of such the Indemnified Party, which consent shall not be unreasonably withheld.
(d) Whether or not the Indemnifying Party chooses to defend or prosecute any claim involving a third party, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. In additionSuch cooperation shall include access during normal business hours afforded 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, and the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and reimburse the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partyfor all its reasonable out-of-pocket expenses in connection therewith.
Appears in 1 contract
Sources: Stock Purchase Agreement (O2wireless Solutions Inc)
Procedures. If (i) Except as otherwise provided in this Agreement, any Stockholder Event Party seeking any indemnification under this Section 9.2 (an “Indemnified Party”) shall give the party from whom indemnification is being sought (an “Indemnifying Party”) notice (and also to the Agent in the case of Breach occurs or is alleged and a UAG claims by an IWEST Indemnified Party) of any matter which such Indemnified Party asserts that the Stockholder have become obligated has determined has given or could give rise to a UAG right of indemnification under this Agreement as soon as reasonably practicable after the party potentially entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 9.2. With respect to any claims for indemnification under this Section 9.2 by a Stockholder Indemnified Party pursuant Party, IREIC or the Agent as applicable shall have sole and exclusive authority to SECTION 9.1act for and in the name of the Indemnified Party. With respect to any claims for indemnification under this Section 9.2 by an IWEST Indemnified Party, or if any Stockholder's Third Party Claim is begun, made or instituted as a result IWEST shall have sole and exclusive authority to act for and in the name of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or Party.
(ii) a UAG Event The liability of Breach occurs or is alleged an Indemnifying Party under this Section 9.2 with respect to Damages arising from claims of any third party which are subject to the indemnification provided for in this Section 9.2 (“Third Party Claims”) shall be governed by and a Stockholder contingent upon the following additional terms and conditions. If an Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if shall receive notice of any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as , the context so requires), such Indemnified Party shall give written notice to the Indemnifying Party notice of its or his obligation such Third Party Claim within twenty (20) days after the receipt by the Indemnified Party of such notice; provided, however, that the failure to provide indemnification hereunder, provided that any failure to so notify such notice shall not release the Indemnifying Party shall not relieve them from any liability that it or he may have of its obligations under this Section 9.2 except to the Indemnified extent the Indemnifying Party under this ARTICLE 9is materially and irreparably prejudiced by such failure. If such notice relates The Indemnifying Party shall be entitled to a Third Party Claim, each Indemnifying Party, jointly assume and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any control the defense of such Third Party Claim at his or its sole cost expense and expense. Such through counsel of its choice if it acknowledges, without qualification, its indemnification obligations hereunder and gives notice of its intention to do so to the Indemnified Party shall have within thirty (30) days after the right, but not the obligation, to participate at its own expense in the defense thereof by counsel receipt of such notice from the Indemnified Party's choice ; provided, however, that if there exists a material conflict of interest (other than one that is of a monetary nature) that would make it inappropriate for the same counsel to represent both the Indemnified Party and shall in any event cooperate with and assist the Indemnifying Party to Party, then the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover retain its own counsel, at the entire Cost thereof from expense of the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by provided that the Indemnifying Party shall not be obligated to notify pay the reasonable fees and expenses of more than one separate counsel for all Indemnified Parties, taken together (except to the extent that local counsel are necessary or advisable for the conduct of such Indemnified action or proceeding, in which case the Indemnifying Party shall also pay the reasonable fees and expenses of its or their election to defend any such local counsel). If the Indemnifying Party shall not assume the defense of any Third Party Claim within or litigation resulting therefrom, the Indemnified Party may defend against the claim or litigation in any manner as it deems appropriate at the expense of the Indemnifying Party and may settle the claim or litigation on any reasonable terms as it deems appropriate at the expense of the Indemnifying Party; provided, however, that in settling any action in respect of which indemnification is payable under this Article IX, it shall act reasonably and in good faith and shall not settle any action with an Affiliate or related party without providing fifteen (15) days after advance written notice thereof of the Third Party Claim to the Indemnifying Party. In the event the Indemnifying Party exercises the right to undertake the defense against any Third Party Claim as provided above, the Indemnified Party shall have been given cooperate with the Indemnifying Party and make available to the Indemnifying Party shall be deemed a waiver all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party of its is, directly or their right to defend such Third Party Claim. If the Indemnifying Party assumes indirectly, conducting the defense of the particular against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party all witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party.
(iii) The Indemnifying Party shall not, in without the defense prior written consent of such the Indemnified Party, (a) settle or compromise any Third Party Claim, Claim or consent to the entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving unconditional, duly authorized, fully executed and acknowledged (by a duly registered notary public) written release by the claimant or plaintiff of the plaintiff to such Indemnified Party a full release from all liability in respect of such the Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense b) settle or settlement of compromise any Third Party Claim if the settlement imposes equitable remedies or material obligations on the Indemnified Party other than financial obligations for which such Indemnified Party will be indemnified hereunder, subject to the extent the limits set forth in Section 9.3; or (c) settle or compromise any Third Party Claim seeks an order, injunction if the result is to admit civil or other equitable relief against criminal liability or culpability on the part of the Indemnified Party which, if successful, could materially interfere or that gives rise to criminal liability with the business, operations, assets, condition (financial or otherwise) or prospects of respect to the Indemnified Party. No Third Party Claim which is being defended in good faith by the Indemnifying Party in accordance with the terms of this Agreement shall be settled or compromised by the Indemnified Party without the prior written consent of the Indemnifying Party.
Appears in 1 contract
Sources: Merger Agreement (Inland Western Retail Real Estate Trust Inc)
Procedures. All Claims or demands for indemnification under this Section 15 shall be asserted and resolved as follows:
15.7.1 In the event an Indemnified Party has a Claim against any Indemnifying Party hereunder which does not involve a Claim being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send notice of such Claim to the Indemnifying Party. In case the Indemnifying Party shall object in writing to any Claim for indemnification made in accordance with this Section 15.7.1, the Indemnified Party shall have fifteen (15) days to respond in a written statement to the objection of the Indemnifying Party. If after such 15-day period there remains a dispute as to any indemnification Claims or if the indemnifying party does not dispute such Claim as required under Section 15.7.2, the parties shall attempt in good faith for thirty (30) days to reach written agreement on the resolution of such indemnification Claim. If no such agreement can be reached after good faith negotiation during that 30 day period, the parties shall submit the indemnification Claim for final determination by binding arbitration, with such arbitration proceeding conducted in accordance with the Commercial Rules of the American Arbitration Association then in effect. The arbitration proceeding shall be held in the New York City metropolitan area and the costs thereof shall be paid by the prevailing party in such arbitration proceeding. The failure of the Indemnifying Party to respond shall not be an acknowledgement of liability by the Indemnifying Party.
15.7.2 In the event that any Claim for which any party would be liable to an Indemnified Party hereunder is asserted against an Indemnified Party by a third party, the Indemnified Party shall with reasonable promptness notify the Indemnifying Party of such Third Party Claim, specifying the nature of such Claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such Claim) (the “Claim Notice”). The Indemnifying Party shall have fifteen (15) days from the receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) any Stockholder Event of Breach occurs whether or is alleged and a UAG Indemnified not the Indemnifying Party asserts that disputes liability to the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred with respect to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG such Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give written notice to (ii) if the Indemnifying Party of its does not dispute such liability, whether or his obligation to provide indemnification hereunder, provided that any failure to so notify not the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claimdesires, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defend against such Claim. In the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist that the Indemnifying Party to notifies the extent reasonably possible. If Indemnified Party within the Notice Period that the Indemnifying Party fails timely does not dispute its obligation to defend, contest or otherwise protect indemnify hereunder and desires to defend the Indemnified Party against such Third Party Claim, such Indemnified except as hereinafter provided, the Indemnifying Party shall have the right to do sodefend by appropriate proceedings, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party which proceedings shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (promptly settled or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure prosecuted by the Indemnifying Party to notify such a final conclusion; provided that, unless the Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to otherwise agrees in writing, the Indemnifying Party shall be deemed may not settle any matter (in whole or in part) unless such settlement includes a waiver by complete and unconditional release of the Indemnifying Indemnified Party. If the Indemnified Party of its desires to participate in, but not control, any such defense or their right to defend such Third settlement, the Indemnified Party Claimmay do so at the Indemnified Party’s sole cost and expense. If the Indemnifying Party assumes elects not to defend the defense of the particular Third Indemnified Party Claim, the Indemnifying Party shall not, in the defense of against such Third Party Claim, consent to entry whether by failure of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third to give the Indemnified Party Claim (except with timely notice as provided above or otherwise, then the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, without waiving any rights against the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense Party, may settle or defend against any such Claim in the defense of), Indemnified Party’s sole discretion and the Indemnified Party shall be entitled to have sole control over, recover from the defense or settlement Indemnifying Party the amount of any Third settlement or judgment and, on an ongoing basis, all indemnifiable costs and expenses of the Indemnified Party with respect thereto, including interest from the date such costs and expenses were incurred.
15.7.3 An Indemnified Party may make an indemnification Claim hereunder, for potential or contingent Claims or demands provided the Claim Notice sets forth the specific basis for any such potential or contingent Claim or demand to the extent the Third Party Claim seeks an order, injunction or other equitable relief against then feasible and the Indemnified Party whichhas reasonable grounds to believe that such a Claim or demand may be made.
15.7.4 The Indemnified Party’s failure to give reasonably prompt notice to the Indemnifying Party of any actual, if successful, could materially interfere with threatened or possible Claim or demand which may give rise to a right of indemnification hereunder shall not relieve the business, operations, assets, condition (financial or otherwise) or prospects Indemnifying Party of any Liability which it may have to the Indemnified Party unless the failure to give such notice materially and adversely prejudiced the Indemnifying Party.
Appears in 1 contract
Procedures. If (ia) In order for a Person to be entitled to any Stockholder Event indemnification provided for under this ARTICLE X in respect of, arising out of Breach occurs or is alleged and involving a UAG Indemnified claim made by any Person against the indemnified party (a “Third-Party asserts that Claim”), such indemnified party must notify the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1indemnifying party (which in the case of Sellers, or if any Stockholder's Third shall be Sellers’ Representative) in writing of the Third-Party Claim is begunpromptly after receipt by such indemnified party of written notice of the Third-Party Claim; provided, made or instituted however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of which the Stockholder may become obligated to such failure.
(b) If a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Third-Party Claim is begunmade against an indemnified party, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party indemnifying party shall give written notice to the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, be entitled to participate at its own expense in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the indemnifying party; provided, however, that the indemnifying party shall not be entitled to assume the defense of any Third-Party Claim if (i) the indemnified party shall have one or more legal or equitable defenses available to it which are different from or in addition to those available to the indemnifying party, and, in the reasonable opinion of the indemnified party, counsel for the indemnifying party could not adequately represent the interests of the indemnified party because such interests could be in conflict with those of the indemnifying party, (ii) such Third-Party Claim involves injunctive or other non-monetary relief (provided, however, that if such Third-Party Claim includes a request for injunctive or other non-monetary relief, the indemnifying party may assume the defense of such Indemnified Party's choice and Third-Party Claim so long as the indemnified party has joint control of the defense of the portion of such Third-Party Claim relating to the request for injunctive or other non-monetary relief) or (iii) the indemnifying party shall not have assumed the defense of such Third-Party Claim in a timely fashion (but in any event cooperate with and assist the Indemnifying within 30 days of written notice of such Third-Party to the extent reasonably possibleClaim). If the Indemnifying Party fails timely to defendindemnifying party assumes such defense, contest or otherwise protect against such Third Party Claim, such Indemnified Party the indemnified party shall have the right to do soparticipate in the defense thereof and to employ counsel, includingat its own expense, without limitationseparate 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. If the indemnifying party chooses to defend or prosecute a Third-Party Claim, the right indemnifying party shall keep the indemnified party reasonably apprised of the status of the Third-Party Claim and shall furnish the indemnified party with copies of all notices and documents (including court papers) received by the indemnifying party relating to make the Third-Party Claim, and the indemnified party shall use its commercially reasonable efforts to cooperate (at the indemnifying party’s sole cost and expense) in the defense or prosecution thereof. If the indemnifying party assumes the defense of a Third-Party Claim, the indemnifying party shall not admit any liability with respect to, or settle, compromise or settlement discharge, such Third-Party Claim without the indemnified party’s prior written consent; provided, however, that the indemnified party shall agree to any settlement, compromise or discharge of a Third-Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third-Party Claim, which releases the indemnified party completely and unconditionally from all liability in connection with such Third-Party Claim and that would not otherwise adversely affect the indemnified party.
(c) In the event any indemnified party should have a claim against any indemnifying party under this ARTICLE X that does not involve a Third-Party Claim being asserted against or sought to be collected from such indemnified party, the indemnified party may make such claim directly against any indemnifying party by delivering written notice of such claim to the indemnifying party. If the indemnifying party does not notify the indemnified party within 10 Business Days following its receipt of such notice that the indemnifying party disputes its liability to the indemnified party under this ARTICLE X, such claim specified by the indemnified party in such notice shall be conclusively deemed a liability of the indemnifying party under this ARTICLE X and the indemnifying party shall pay the amount of such liability to the indemnified party on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, and on such Indemnified Party later date when the amount of such claim (or such portion thereof) becomes finally determined.
(d) No Person shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (indemnification under Section 10.3 or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof Section 10.4 unless it shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense from which indemnity is sought written notice of the particular Third Party Claim, the Indemnifying Party shall notLiabilities for which it seeks indemnification (which notice may be, in the defense case of such Third Third-Party ClaimClaims, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense ofnotice under Section 10.6(a), and in the Indemnified Party shall be entitled to have sole control overcase of direct claims, notice under Section 10.6(c)) within the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partyapplicable Survival Period.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (PDC Energy, Inc.)
Procedures. If Any party seeking indemnification under Section 12.02 (i) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "“Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party ”) shall give prompt written notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion or commencement of any claim, action, suit or proceeding by any third party alleging facts that if proven true would constitute a misrepresentation or breach of warranty by the Company or with respect to any Ancillary Agreement, the Company (a “Third Party of its or his obligation to provide indemnification hereunder, Claim”); provided that any failure to so notify no delay on the part of the Indemnified Party in notifying the Indemnifying Party shall not relieve them from the Indemnifying Party of any liability or obligation hereunder except to the extent that it or he may have to the Indemnifying Party has been prejudiced thereby. The Indemnifying Party may, and at the request of the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claimshall, each Indemnifying Party, jointly participate in and severally, agrees to defend, contest or otherwise protect such Indemnified Party against control the defense of any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claimexpense. If the Indemnifying Party assumes control of the defense of the particular a Third Party Claim, the Indemnifying Party shall not, in not be liable under Section 12.03 for any settlement effected by the defense of such Third Indemnified Party Claim, without its consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, if the Indemnifying Party shall assumes the defense of a Third Party Claim and if the Indemnified Party later determines in good faith that a Third Party Claim is likely to materially adversely affect it or its business in a manner that may not be entitled adequately compensated by money damages, then the Indemnified Party may, by written notice to control (but shall be entitled the Indemnifying Party, assume the exclusive right to participate at their own expense in the defense of)defend, and compromise, or settle such claim. If the Indemnified Party shall be entitled so assume the exclusive right to have sole control overdefend, compromise, or settle such claim, all attorneys’ fees and other expenses incurred by the defense Indemnified Party in the defense, compromise or settlement of such claim and for the full amount of any Third other Damages suffered by the Indemnified Party Claim to the extent as a result of or arising out of the Third Party Claim seeks an ordershall be at the Indemnifying Party’s expense. The party controlling the defense of any third party suit, injunction action or proceeding shall keep the other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects party advised of the Indemnified Partystatus of such action, suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto.
Appears in 1 contract
Sources: Merger Agreement (Optium Corp)
Procedures. If (ia) In order for any Stockholder Event Buyer Indemnitee or Seller Indemnitee (each, an “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement in respect of, arising out of Breach occurs or is alleged and involving a UAG claim made by any Third Party against the Indemnified Party asserts that the Stockholder have become obligated to (a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," in each case as the context so requires”), such Indemnified Party shall give written notice to the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so must notify the Indemnifying Party shall not relieve them from any liability that it or he which may have be required to indemnify the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each (the “Indemnifying Party, jointly ”) in writing (and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have in reasonable detail) of the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days Business Days after receipt by such Indemnified Party of notice thereof of the Third Party Claim (the “Notice Period”); provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been prejudiced as a result of such failure; and provided, further, that if such notice is not given prior to the expiration of the applicable Survival Period, if applicable, the Indemnified Party shall have no right to indemnification hereunder. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall be deemed entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party; unless:
(i) the Indemnifying Party fails to acknowledge fully its obligations to the Indemnified Party(ies) under this Agreement within the Notice Period; (ii) the applicable third party claimant is a waiver Governmental Authority or a then-current customer of Buyer, Seller or any of their respective Affiliates; (iii) the applicable Third Party alleges a fraud claim or a claim that is criminal in nature or seeks injunctive relief or other equitable remedies against the Indemnified Party(ies), including suspension or debarment; (iv) an adverse judgment with respect to the claim will establish a precedent materially adverse to the continuing business interests of Seller, Buyer or their respective Affiliates; and/or (v) there is a material conflict of interest between the Indemnified Party and the Indemnifying Party in the conduct of such defense, in any of which cases the Indemnifying Party shall not be entitled to assume the defense thereof. Should the Indemnifying Party be entitled to and so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for any 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. If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the Indemnified Parties shall reasonably cooperate (at the Indemnifying Party’s expense) 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 its or their right records and information that are reasonably relevant to defend 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 assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld). If the Indemnifying Party assumes the defense of the particular a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party shall not, may recommend and that: (i) by its terms obligates the Indemnifying Party to pay the full amount of the liability in the defense of connection with such Third Party Claim, consent (ii) by its terms releases the Indemnified Party completely in connection with all liabilities and - 29 - obligations of such Third Party Claim and (iii) would not otherwise materially and adversely affect the Indemnified Party.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party under Section 10.2 or Section 10.3 that does not involve a Third Party Claim being asserted against or sought to entry of any judgment or enter into any settlement, except with the written consent of be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim with reasonable promptness to the Indemnifying Party and in any event prior to the expiration of the applicable Survival Period, if applicable. In addition, The failure by any Indemnified Party so to notify the Indemnifying Party shall not enter into relieve the Indemnifying Party from any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff liability that it may have to such Indemnified Party a full release from all under Section 10.2 or Section 10.3, except to the extent that the Indemnifying Party demonstrates that it has been prejudiced by such failure; provided, that if such notice is not given prior to the expiration of the applicable Survival Period, if applicable, the Indemnified Party shall have no right to indemnification hereunder. If the Indemnifying Party disputes its liability in with respect to such claim within thirty (30) days of its receipt of such Third notice, the Indemnifying Party Claimand the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations, such dispute shall be resolved by litigation in accordance with Section 11.8. Notwithstanding the foregoing, the Indemnifying Party procedures set forth in this Section 10.6 shall not be entitled control for claims related to control (but Taxes, which shall be entitled to participate at their own expense in the defense ofcontrolled by Section 8.4(g), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party.
Appears in 1 contract
Procedures. If Any party seeking indemnification under Section 12.02 (i) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "“Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party ”) shall give prompt written notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion or commencement of any claim, action, suit or proceeding by any third party alleging facts that if proven true would constitute a misrepresentation or breach of warranty by the Seller or any of the Principals, or with respect to any Ancillary Agreement, the Company (a “Third Party of its or his obligation to provide indemnification hereunder, Claim”); provided that any failure to so notify no delay on the part of the Indemnified Party in notifying the Indemnifying Party shall not relieve them from the Indemnifying Party of any liability or obligation hereunder except to the extent that it or he may have to the Indemnifying Party has been prejudiced thereby. The Indemnifying Party may, and at the request of the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claimshall, each Indemnifying Party, jointly participate in and severally, agrees to defend, contest or otherwise protect such Indemnified Party against control the defense of any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claimexpense. If the Indemnifying Party assumes control of the defense of the particular a Third Party Claim, the Indemnifying Party shall not, in not be liable under Section 12.02 for any settlement effected by the defense of such Third Indemnified Party Claim, without its consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, if the Indemnifying Party assumes the defense of a Third Party Claim and if the Indemnified Party later determines in good faith that a Third Party Claim is likely to materially adversely affect it or its business in a manner that may not be adequately compensated by money damages, then the Indemnified Party may, by written notice to the Indemnifying Party, assume the exclusive right to defend, compromise, or settle such claim. If the Indemnified Party shall so assume the exclusive right to defend, compromise, or settle such claim, all attorneys’ fees and other expenses incurred by the Indemnified Party in the defense, compromise or settlement of such claim shall be at the Indemnified Party’s expense and shall not be entitled to control (eligible for indemnification from the Indemnifying Party, but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, be indemnified by the defense or settlement Indemnifying Party for the full amount of any Third other Damages suffered by the Indemnified Party Claim to the extent as a result of or arising out of the Third Party Claim seeks an orderClaim. The party controlling the defense of any third party suit, injunction action or proceeding shall keep the other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects party advised of the Indemnified Partystatus of such action, suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto.
Appears in 1 contract
Sources: Purchase Agreement (Digitas Inc)
Procedures. If (i) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that receives notice of the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, assertion or if commencement of any Stockholder's Third Party Claim is begun, Action made or instituted as brought by any Person who is not a result party to this Agreement or an Affiliate of which a party to this Agreement or a Representative of the Stockholder may become obligated to foregoing (a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," in each case as ”) against such Indemnified Party with respect to which the context so requires)Indemnifying Party is obligated to provide indemnification under this Agreement, such the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than twenty (20) Business Days after receipt of such notice of such Third Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or his obligation defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to provide indemnification hereunderparticipate in, provided or by giving written notice to the Indemnified Party, to assume the defense of any Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense; provided, that any failure to so notify if the Indemnifying Party is Seller, such Indemnifying Party shall not relieve them from any liability that it have the right to defend or he may have to direct the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against defense of any such Third Party Claim at his that (x) is asserted directly by or its sole cost and expense. Such Indemnified Party shall have on behalf of a Person that is a supplier or customer of any Acquired Company or any Governmental Authority, or (y) seeks an injunction or other equitable relief against the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any . In the event cooperate with and assist that the Indemnifying Party to assumes the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such defense of any Third Party Claim, subject to Section 8.05(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to do so, including, without limitation, participate in the right defense of any Third Party Claim with counsel selected by it subject to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, includingprovided, without limitationthat if in the reasonable opinion of counsel to the Indemnified Party, attorneys' fees, disbursements and amounts paid (or of which such A) there are legal defenses available to an Indemnified Party has become obligated that are different from or additional to paythose available to the Indemnifying Party; or (B) as the result there exists a conflict of such Third Party Claim. Failure by interest between the Indemnifying Party to notify such and the Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to that cannot be waived, the Indemnifying Party shall be deemed a waiver by liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. If the Indemnifying Party of its elects not to compromise or their right to defend such Third Party Claim. If , fails to promptly notify the Indemnifying Indemnified Party assumes the defense in writing of the particular Third Party Claimits election to defend as provided in this Agreement, the Indemnifying Party shall not, in or fails to diligently prosecute the defense of such Third Party Claim, consent the Indemnified Party may, subject to entry of Section 8.0S(b), pay, compromise, or defend such Third Party Claim and seek indemnification for any judgment and all Losses based upon, arising from or enter into any settlement, except relating to such Third Party Claim. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement defense of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff Claim, including making available records relating to such Indemnified Third Party a full release from all liability in respect Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Focus Impact BH3 NewCo, Inc.)
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and a UAG Indemnified Party asserts that the Stockholder have become obligated to a UAG Indemnified Party A party seeking indemnification pursuant to SECTION 9.1, Sections 6.2 or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or 6.3 (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and ") shall give prompt notice to the Stockholder are sometimes referred to as an party from whom such indemnification is sought (the "Indemnifying Party," and ") of the assertion of any UAG Third Party Claim and claim or assessment, or the commencement of any Stockholder Third Party Claim is sometimes referred to as action, suit, audit or proceeding, by a third party in respect of which indemnity may be sought hereunder (a "Third Party Claim," in each case ") and will give the Indemnifying Party such information with respect thereto as the context so requires)Indemnifying Party may reasonably request, but no failure to give such Indemnified Party notice shall give written notice to relieve the Indemnifying Party of its or his obligation any liability hereunder (except to provide indemnification hereunder, provided that any failure to so notify the extent the Indemnifying Party shall not relieve them from any liability that it or he may have to has suffered actual prejudice thereby). Thereafter, the Indemnified Party under this ARTICLE 9. If such notice relates shall deliver to a the Indemnifying Party, within five (5) business days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim, each . The Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not exercisable by written notice (the obligation"Notice") to the Indemnified Party within thirty (30) days of receipt of notice from the Indemnified Party of the commencement or assertion of any Third Party Claim, to participate at its own expense in assume the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure using counsel selected by the Indemnifying Party and reasonably acceptable to notify such the Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to Party. Should the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right so elect to defend such Third Party Claim. If the Indemnifying Party assumes assume the defense of the particular a Third Party Claim, the Indemnifying Party shall notnot 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 shall fail to assume the defense of the Third Party Claim within such thirty (30) day period, in the Indemnified Party shall have the right to undertake the defense of such Third Party Claim on behalf of the Indemnifying Party. Regardless of whether the Indemnifying Party elects to assume the defense of any such Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge such Third Party Claim without the Indemnifying Party's prior written consent.
(b) The Indemnifying Party or the Indemnified Party, as the case may be, shall in any event have the right to participate, at its own expense, in the defense of any Third Party Claim which the other is defending.
(c) The Indemnifying Party, if it shall have assumed the defense of any Third Party Claim in accordance with the terms hereof, shall have the right, upon five (5) days prior written notice to the Indemnified Party, to consent to the entry of any judgment with respect to, or otherwise settle such Third Party Claim provided the Indemnifying Party agrees that as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge such judgment or enter into settlement unless (i) the Third Party Claim involves equitable or other non-monetary damages or (ii) in the reasonable judgment of the Indemnified Party such settlement would have a continuing material adverse effect on the Indemnified Party's business (including any settlementmaterial impairment of its relationships with customers and suppliers), except in which case such settlement only may be made with the written consent of such the Indemnified Party, which consent shall not be unreasonably withheld.
(d) Whether or not the Indemnifying Party chooses to defend or prosecute any claim involving a third party, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. In additionSuch cooperation shall include access during normal business hours afforded 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, and the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and reimburse the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partyfor all its reasonable out-of-pocket expenses in connection therewith.
Appears in 1 contract
Sources: Asset Purchase Agreement (O2wireless Solutions Inc)
Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and In order for a UAG Parent Indemnified Party asserts that the Stockholder have become obligated to a UAG or Seller Indemnified Party pursuant (the “Indemnified Party”) to SECTION 9.1, or if be entitled to any Stockholder's Third Party Claim is begun, made or instituted indemnification provided for under this Agreement as a result of which a claim or demand made by any Person against the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," in each case as the context so requires”), such Indemnified Party shall give deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) (which notice, in any case where any Seller is an Indemnifying Party, shall be sent to the Seller Representative unless a claim is made hereunder with respect to which only the Reverence Sellers would, pursuant to the proviso set forth in Section 8.2, have any liability, in which case the Reverence Sellers will be the “Indemnifying Party” hereunder) promptly after receipt by such Indemnified Party of written notice to of the Third Party Claim and shall provide the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify with such other information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent that the Indemnifying Party is prejudiced by such failure and shall not relieve them the Indemnifying Party from any other obligation or liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified pursuant to this Article VIII.
(b) Except with respect to claims for indemnification related to Taxes, which shall be governed by Section 6.19(e), the Indemnifying Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party upon written notice to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof within 30 days of receipt of notice from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense commencement of such Third Party Claim, consent to entry assume the defense thereof at the expense of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third with counsel selected by the Indemnifying Party Claim (except with and reasonably satisfactory to the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in assume the defense of)of any Third Party Claim for equitable or injunctive relief or any claim that would impose criminal liability or damages, and the Indemnified Party shall have the right to defend, at the expense of the Indemnifying Party, any such Third Party Claim. The Indemnifying Party shall be entitled liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to have sole control overassume the defense thereof. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense or settlement thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party; provided, that if in the reasonable opinion of counsel for the Indemnified Party, there is a conflict of interest between the Indemnified Party and the Indemnifying Party, the Indemnifying Party shall be responsible for the reasonable fees and expenses of one counsel to such Indemnified Party in connection with such defense. If the Indemnifying Party assumes the defense of any Third Party Claim Claim, the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the extent Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent will not be unreasonably conditioned, withheld or delayed), agree to any settlement, compromise or discharge of such Third Party Claim seeks an orderthat (i) involves a finding or admission of wrongdoing or any violation of Law or any violation of the rights of any Person by the Indemnified Party, injunction or other equitable relief against (ii) does not unconditionally release the Indemnified Party which, if successful, could materially interfere of liability in connection with the business, operations, assets, condition such Third Party Claim or (financial iii) imposes any equitable or otherwise) other non-monetary remedies or prospects of obligations on the Indemnified Party, other than customary confidentially obligations.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that (i) does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party or (ii) is a claim related to Taxes, which shall be governed by Section 6.19(e), the Indemnified Party shall deliver notice of such claim promptly to the Indemnifying Party.
Appears in 1 contract
Procedures. (a) If (i) any Stockholder Event of Breach occurs or is alleged and a UAG an Indemnified Party asserts that receives written notice of the Stockholder have become obligated to commencement of a UAG Proceeding by a third Person against such Indemnified Party pursuant (a “Third Party Claim”) with respect to SECTION 9.1which such Indemnified Party intends to make a claim for indemnification against a Party (the “Indemnifying Party”) under this Article VIII, then such Indemnified Party shall promptly notify the Indemnifying Party (or Sellers’ Representative, if any Stockholder's the Indemnifying Party is a Seller Party) in writing of such Third Party Claim is begundescribing in reasonable detail the Claim, made an estimate of the Losses actually incurred to date (if known and quantifiable), the amount of such Claim (if known and quantifiable) and the basis thereof; provided, however, that failure to promptly give such notification shall not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to an Indemnified Party hereunder except to the extent and only to the extent that the defense of such Third Party Claim was materially prejudiced or instituted forfeited material rights or material defenses as a result of which such failure.
(b) The Indemnifying Party shall be entitled to assume the Stockholder may become obligated to defense of a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim (at the Indemnifying Party’s own expense and with counsel of its choice that is begun, made or instituted reasonably satisfactory to the Indemnified Party) so long as a result of which UAG may become obligated to a Stockholder the Indemnifying Party notifies the Indemnified Party hereunder in writing within fifteen (for purposes of this ARTICLE 9, any UAG 15) days after the Indemnified Party and any Stockholder delivered notice of such Third Party Claim that the Indemnifying Party elects to assume the defense of such Third Party Claim; provided, that in order for the Indemnifying Party to assume the defense of such Third Party Claim, the Indemnifying Party shall first verify to the Indemnified Party is sometimes referred in writing (within fifteen (15) days after the Indemnified Party delivered notice of such Third Party Claim) that the Indemnifying Party shall (i) be fully responsible (with no reservation of any rights and without regard to as an "Indemnified Party" any limitation set forth in this Agreement) for all liabilities and UAG and the Stockholder are sometimes referred obligations relating to as an "Indemnifying Party," and any UAG such Third Party Claim and any Stockholder (ii) provide full indemnification to the Indemnified Party with respect to such Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as (the context so requires“Control of Defense Conditions”); provided, such Indemnified Party shall give written notice to the Indemnifying Party of its or his obligation to provide indemnification hereunderfurther, provided that any failure to so notify the Indemnifying Party shall not relieve them from be permitted to assume (or continue to assume, as applicable) the defense of a Third Party Claim if: (A) such Third Party Claim relates to, or arises in connection with, any liability criminal Proceeding, action, indictment, criminal allegation or criminal investigation; (B) the Third Party Claim seeks any form of remedy other than monetary damages; (C) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such Third Party Claim; (D) the Indemnified Party is advised in writing by legal counsel chosen by it that (x) the Indemnified Party and the Indemnifying Party have conflicting interests with respect to such Third Party Claim, or he may have (y) there are one or more legal or equitable defenses available to the Indemnified Party that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses); (E) the Indemnified Party reasonably believes that the Third Party Claim could have a material and adverse impact on the business operations of the Indemnified Party or any of its Affiliates; or (F) the Indemnified Party is seeking recovery with respect to such Third Party Claim under this ARTICLE 9the R&W Policy. During the pendency of a Third Party Claim of which the Indemnifying Party has duly assumed the defense, the Indemnified Party shall provide the Indemnifying Party with reasonable access to all books, records, and other documents and materials that are under the control of the Indemnified Party and are reasonably necessary to evaluate the merits of such Third Party Claim; provided that no such access shall be permitted to the extent that it would require the Indemnified Party to disclose information subject to attorney client privilege or attorney work product privilege, conflict with any third-party confidentiality obligations to which the Indemnified Party is bound, or violate any applicable Law.
(c) If such notice relates to the Indemnifying Party assumes the defense of a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have then the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do soparticipate in the defense thereof and to employ counsel, includingat its own expense, without limitation, separate from the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from counsel employed by the Indemnifying Party, includingit being understood that, without limitation, attorneys' fees, disbursements and amounts paid (or of which such if the Indemnified Party has become obligated to payexercises such right, then (i) as the result Indemnifying Party shall control such defense and (ii) the Indemnified Party and the Indemnifying Party shall, and shall cause their respective Representatives to, reasonably cooperate in the defense and settlement of such Third Party Claim. Failure by the The Indemnifying Party shall lose its right to notify such Indemnified Party of its or their election to defend any such contest, defend, litigate and settle the Third Party Claim within fifteen (15) days after notice thereof if it shall have been given fail to diligently contest the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party ClaimClaim or shall otherwise fail to satisfy the Control of Defense Conditions. If the Indemnifying Party assumes the defense of a Third Party Claim and is in good faith contesting such Third Party Claim and has satisfied and continues to satisfy the particular Control of Defense Conditions, then the Indemnifying Party shall not agree to, or otherwise effect, any settlement, compromise or discharge of such Third Party Claim without the Indemnified Party’s consent (which will not be unreasonably withheld, delayed or conditioned); provided, that in no event will the consent of the Indemnified Party be deemed to be unreasonably withheld, conditioned or delayed unless: (A) the sole relief provided by such settlement, compromise or discharge is monetary damages that are paid in full by the Indemnifying Party or otherwise provided for by the Indemnifying Party concurrently with the settlement, compromise or discharge; (B) such settlement, compromise or discharge releases the Indemnified Parties completely with respect to the claim(s) asserted against the Indemnified Parties in such Third Party Claim; and (C) such settlement, compromise or discharge does not impose any restriction on the future activity or conduct of any Indemnified Party. If an Indemnified Party assumes the defense of a Third Party Claim or if the Indemnifying Party loses the right to control the defense of a Third Party Claim, the Indemnified Party may settle, compromise or discharge such Third Party Claim at such time and upon such terms as the Indemnified Party deems fair and reasonable without the consent of the Indemnifying Party; provided, however, that, unless the Indemnifying Party consents to such settlement, compromise or discharge in writing, the terms of such settlement, compromise or discharge (including with respect to the amount of any Losses) shall notnot be binding on an Indemnifying Party for purposes of determining such Indemnifying Party’s indemnification obligations hereunder (including the amount of any Losses).
(d) In the event any Indemnified Party desires to assert a claim for indemnification against any Indemnifying Party under Section 8.1 or 8.2 and such claim does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, then the Indemnified Party shall promptly notify the Indemnifying Party (or Sellers’ Representative, if the Indemnifying Party is a Seller Party) in writing of such claim; provided, however, that failure to promptly give such notification shall not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to an Indemnified Party hereunder except and only to the extent that the defense of such Third claim was materially prejudiced as a result of such failure or forfeited material rights or material defenses as a result of such failure; provided, further, that failure to promptly give such notification shall not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to an Indemnified Party hereunder, except and only to the extent that the Indemnifying Party demonstrates it was materially prejudiced by such failure or forfeited material rights or material defenses as a result of such failure.
(e) If a claim shall be made by any Taxing Authority, which, if successful, might result in an indemnity payment to any Buyer Indemnitee pursuant to Section 8.1, Buyer shall promptly notify Sellers’ Representative in writing of such claim (a “Tax Claim”); provided, that the delay to notify Sellers’ Representative shall not relieve the Sellers of their obligations hereunder except to the extent that (and only to the extent that) the Seller Parties have been materially prejudiced thereby. Sellers’ Representative may, at Seller Parties’ expense, and, upon notice to Buyer within fifteen (15) days of receiving Buyer’s notice of such Tax Claim, consent to entry assume the defense of any judgment such Tax Claim with respect to a Seller Return (a “Seller Tax Claim”). If Sellers’ Representative assumes such defense, Sellers’ Representative will have the authority, with respect to any Seller Tax Claim, to represent the interests of the Companies before the relevant Taxing Authority, including responding to inquiries, and contesting, defending against any assessment for additional Taxes or enter into notice of Tax deficiency or other adjustment of Taxes of, or relating to, such Seller Tax Claim; provided, that (i) Buyer shall be entitled to participate, at its own expense, in any settlementSeller Tax Claim and to employ counsel, except at its own expense, separate from the counsel employed by Seller Parties, (ii) Sellers, the Companies and Buyer shall cause the Companies to make the alternative election pursuant to Section 6226(a) of the Code with respect to all Seller Tax Claims after receipt of a notice of final partnership adjustment from the Internal Revenue Service, and (iii) Sellers’ Representative shall not settle any Seller Tax Claim without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned, or delayed). If Sellers’ Representative assumes the defense of a Tax Claim, Buyer shall deliver all appropriate and necessary powers of attorney to Sellers’ Representative. Sellers’ Representative will, in good faith, allow Buyer to consult with it regarding the conduct of or positions taken in any such Indemnified PartyProceeding. Buyer and its Subsidiaries and their respective Affiliates (including the Companies), shall reasonably cooperate with Sellers’ Representative in contesting any Seller Tax Claim, which cooperation shall include the retention and (upon Sellers’ written request) the provision to Sellers of records and information which are reasonably relevant to such Seller Tax Claim, and making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder. In additionno case shall Seller Parties, Sellers’ Representative or any Buyer Indemnitee settle or otherwise compromise any Tax Claim without the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the prior written consent of Buyer and Sellers’ Representative, such Indemnified Partyconsent not to be unreasonably withheld, conditioned, or delayed.
(f) which does not include as an unconditional term thereof Buyer and Seller Parties shall, to the giving extent required by the claimant applicable Law, use commercially reasonable efforts to mitigate their Losses upon and after becoming aware of any event or the plaintiff condition that would reasonably be expected to give rise to any Losses that may be indemnifiable hereunder; provided, however, that such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled required to control make such efforts if they would be detrimental in any material respect to such Party.
(but g) The recovery by a Buyer Indemnitee pursuant to this Article VIII shall be net of any reimbursement actually received by such Buyer Indemnitee from any carrier under any of the Companies’ insurance policies in connection with the Losses that form the basis of such Buyer Indemnified Party’s claim for indemnification hereunder during the twelve (12)-month period following the incurrence of the applicable Loss by such Buyer Indemnitee; provided that the amount deemed to be actually received shall be net of the deductibles for such insurance policies and the costs and expenses and other amounts incurred in connection with the receipt or recovery thereof.
(h) Seller Parties shall not be liable under this Article VIII for any Losses to the extent included in the Closing Net Working Capital, Transaction Expenses or Closing Indebtedness and deducted from the Purchase Price, in each case, as finally determined pursuant to Section 2.4.
(i) In no event shall any Indemnified Party be entitled to participate at their own expense obtain reimbursement or recovery from the Seller Parties with respect to any Loss for an amount that is more than the amount of such Loss.
(j) For purposes of determining whether there has been a breach of, or inaccuracy in, any representation or warranty in this Agreement and determining the defense ofamount of any Losses that are the subject matter of a claim for indemnification hereunder, each representation and warranty contained in this Agreement (other than Section 5.15(b)) shall be read without regard and without giving effect to any materiality or Material Adverse Effect or similar standard or qualification contained in or applicable to such representation or warranty (as if such standard or qualification were deleted from such representation and warranty).
(k) In the event any Indemnified Party suffers any Losses by reason of Fraud, and the such Indemnified Party shall be entitled to have sole control overseek recovery therefor without regard to any limitation set forth in this Agreement (whether a temporal limitation, dollar limitation or otherwise).
(l) Notwithstanding anything to the defense contrary in this Agreement or settlement in the Organizational Documents of any Third Company: (i) no Seller Party Claim shall make or initiate any claim for indemnification or advancement of expenses hereunder or under the Organizational Documents of any Company against any Buyer Indemnitee by reason of the fact that such Seller Party was a director, manager, partner, member, trustee, officer, employee, equity holder or agent (each, an “Entity Representative”) of any Company or was serving at the request of any Company as an Entity Representative of another Person (whether such claim is for judgments, Losses, penalties, fines, costs, amounts paid in settlement, expenses or otherwise) to the extent the Third claim for indemnification or advancement of expenses arises from a claim pursuant to which any Buyer Indemnitee is entitled to indemnification from such Seller Party; provided, that the foregoing shall not apply to remedies such Seller Party Claim seeks an order, injunction may have pursuant to Section 7.6; and (ii) each Seller Party hereby acknowledges and agrees that such Seller Party shall have no claim or other equitable relief against the Indemnified Party which, if successful, could materially interfere right to contribution or indemnity from any Buyer Indemnitee with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partyrespect to any amounts paid pursuant to this Article VIII.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (CNL Strategic Capital, LLC)
Procedures. If 7.4.1. A party seeking indemnification (ithe “Indemnified Party”) in respect of, arising out of or involving a Loss or a claim or demand made by any Stockholder Event of Breach occurs or is alleged and a UAG third party against the Indemnified Party asserts that the Stockholder have become obligated to (a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," ”) shall deliver notice (a “Claim Notice”) in each case as respect thereof to the context so requires), Party against whom indemnity is sought (the “Indemnifying Party”) with reasonable promptness after receipt by such Indemnified Party shall give written of notice to of the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each and shall provide the Indemnifying PartyParty with such information with respect thereto, jointly and severallyas the Indemnifying Party may reasonably request. The failure to deliver a Claim Notice, agrees however, shall not release the Indemnifying Party from any of its obligations under this Article 7, except to defend, contest or otherwise protect the extent that the Indemnifying Party is materially prejudiced by such failure.
7.4.2. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any such and all Losses that may result from a Third Party Claim that is exclusively for civil monetary damages at his or its sole cost and expense. Such Indemnified law pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party upon written notice to the extent reasonably possible. If Indemnified Party within fifteen (15) days of receipt of a Claim Notice from the Indemnifying Indemnified Party fails timely to defend, contest or otherwise protect against in respect of such Third Party Claim, such to assume the defense thereof at the sole expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim for equitable or injunctive relief or any claim that would impose criminal liability or damages, and the Indemnified Party shall have the right to do sodefend, including, without limitation, at the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from expense of the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of any such Third Party Claim. Failure 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 failed to notify such Indemnified assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof the time period and otherwise in accordance with the first sentence of this Section 7.4.2, the Indemnified Party shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their sole right to defend assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the particular Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless: (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party, or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall not, in without the defense prior written consent of such Third Party Claimthe Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment or enter into any settlement, except with the written consent of respect to such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim if such settlement, compromise or judgment: (except with the written consent a) involves a finding or admission of such Indemnified Partywrongdoing, (b) which does not include as an unconditional term thereof the giving written release by the claimant or plaintiff of the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim, and/or (c) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder.
7.4.3. Notwithstanding An Indemnified Party seeking indemnification in respect of, arising out of or involving a Loss or a claim or demand hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim”) shall deliver a Claim Notice in respect thereof to the foregoingIndemnifying Party with reasonable promptness after becoming aware of facts supporting such Direct Claim, and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 7, except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party pursuant to this Article 7. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days following its receipt of a Claim Notice in respect of a Direct Claim that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such Direct Claim specified by the Indemnified Party in such Claim Notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such Loss specified in such Claim Notice to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
7.4.4. The Indemnifying Party shall not be entitled to control (but shall require that any action be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense made or settlement of brought against any Third Party Claim to the extent the Third Party Claim seeks an order, injunction other Entity before action is brought or other equitable relief claim is made against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of it hereunder by the Indemnified Party.
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Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and a UAG A Purchaser Indemnified Party asserts that or a Seller Indemnified Party, as the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder case may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder be (for purposes of this ARTICLE 9Section 10.4, an “Indemnified Party”), shall give the indemnifying party under Sections 9.10, 9.11, 10.2 or 10.3, as applicable (for purposes of this Section 10.4, an “Indemnifying Party”), prompt written notice of any UAG matter which it has in good faith determined has given rise to a right of indemnification under this Agreement (the “Indemnity Notice”), stating the amount of the Loss, if known, and method of computation thereof, if practicable, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the Indemnified Party’s failure to provide timely notice as provided herein shall not reduce the indemnification obligations of the Indemnifying Party except to the extent that the Indemnifying Party is materially harmed by such failure to provide notice. If an Indemnifying Party notifies an Indemnified Party within the Dispute Period that it disputes its liability with respect to the claim described in the Indemnity Notice, an Indemnifying Party and any Stockholder an Indemnified Party is sometimes referred shall proceed in good faith to as an "negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved in accordance with the provisions of Section 12.3.
(b) An Indemnified Party" and UAG and Party shall also give prompt written notice of any pending claim or demand by a third party (the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG “Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall give written notice Notice”) to the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party has in good faith determined will likely give rise to a right of indemnification under this ARTICLE 9Agreement (a “Third Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or demand. If an Indemnified Party fails to provide the Third Party Claim Notice with reasonable promptness after an Indemnified Party receives notice of such notice relates to a Third Party Claim, each an Indemnifying Party, jointly and severally, agrees Party shall still be obligated to defend, contest or otherwise protect such indemnify an Indemnified Party against any with respect to such Third Party Claim at his or its sole cost and expenseClaim, except to the extent that an Indemnifying Party’s ability to defend the relevant claim has been materially prejudiced by such failure of an Indemnified Party. Such Indemnified The Indemnifying Party shall have the right, but not the obligationat its sole option and expense, to participate at its own expense in the defense thereof be represented by counsel of such Indemnified Party's its choice and shall in to defend against, negotiate, settle or otherwise deal with any event cooperate with and assist the Indemnifying Third Party Claim which relates to the extent reasonably possibleany Losses indemnified against hereunder. If the Indemnifying Party fails timely elects to defenddefend against, contest negotiate, settle or otherwise protect against such deal with any Third Party ClaimClaim which relates to any Losses indemnified against hereunder, such Indemnified Party it shall have within the right to do soDispute Period, includingor if there is a dispute, without limitationthen within the Resolution Period, notify the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election intent to do so. If the Indemnifying Party elects not to defend against, negotiate, settle or otherwise deal with any such Third Party Claim within fifteen (15) days after notice thereof shall have been given which relates to any Losses indemnified against hereunder, the Indemnifying Indemnified Party shall be deemed a waiver by the Indemnifying Party of its may defend against, negotiate, settle or their right to defend otherwise deal with such Third Party Claim. If the Indemnifying Party assumes shall assume the defense of the particular any Third Party Claim, the Indemnifying Indemnified Party shall notmay participate in, in at his or its own expense, but not control, the defense of such Third Party Claim; provided, however, that such Indemnified Party shall be entitled to participate in any such defense with separate counsel at the expense of the Indemnifying Party if (i) so requested by the Indemnifying Party to participate or (ii) in the reasonable opinion of counsel to the Indemnified Party, a conflict or potential conflict exists between the Indemnified Party and the Indemnifying Party that would make such separate representation advisable; provided, further, that the Indemnifying Party shall not be required to pay for more than one such counsel for all Indemnified Parties in connection with any Third Party Claim. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such Third Party Claim. Notwithstanding anything in this Section 10.4 to the contrary, neither the Indemnifying Party nor the Indemnified Party shall, without the written consent of the other party, which consent shall not be unreasonably withheld, delayed or conditioned, settle or compromise any Third Party Claim or permit a default judgment or consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by unless the claimant or the plaintiff and such party provide to such Indemnified Party a full other party an unqualified release from all liability in respect of such the Third Party Claim. Notwithstanding the foregoing, if a settlement offer solely for money damages is made by the applicable third party claimant, and the Indemnifying Party shall not be entitled notifies the Indemnified Party in writing of the Indemnifying Party’s willingness to control (but shall be entitled accept the settlement offer and, subject to participate at their own expense in the defense of)applicable limitations of Sections 9.10, 9.11, 10.2 and 10.3, pay the amount called for by such offer, and the Indemnified Party shall be entitled declines to have sole control overaccept such offer, the defense Indemnified Party may, at its own expense, continue to contest such Third Party Claim, free of any participation by the Indemnifying Party, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party has an obligation to pay hereunder shall, subject to the Indemnification Cap and other limits set forth in Sections 9.10, 9.11, 10.2 and 10.3, be limited to the lesser of (A) the amount of the settlement offer that the Indemnified Party declined to accept or settlement (B) the aggregate Losses of the Indemnified Party with respect to such Third Party Claim, subject, in each case, to the limitations set forth in Sections 9.10, 9.11, 10.2 and 10.3. If the Indemnifying Party makes any payment on any Third Party Claim or other claim hereunder, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Party to any insurance benefits or other claims of the Indemnified Party with respect to such Third Party Claim seeks an order, injunction or other equitable relief against claim hereunder.
(c) After any final decision, judgment or award shall have been rendered in accordance with Section 12.3 and the expiration of the time in which to appeal therefrom, or a settlement shall have been consummated, or the Indemnified Party whichand the Indemnifying Party shall have arrived at a mutually binding agreement with respect to a Third Party Claim or other claim hereunder, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified PartyParty shall forward to the Indemnifying Party notice of any sums due and owing by the Indemnifying Party pursuant to this Agreement with respect to such matter.
Appears in 1 contract
Sources: Purchase Agreement (Oneok Inc /New/)
Procedures. If (ia) A party seeking indemnification (the “Indemnified Party”) in respect of, arising out of or involving a Loss or a claim or demand made by any Stockholder Event of Breach occurs or is alleged and a UAG person against the Indemnified Party asserts that (a “Third-Party Claim”) shall deliver notice (a “Claim Notice”) in respect thereof to the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim party against whom indemnity is begun, made or instituted as a result of which sought (the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "“Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), ”) with reasonable promptness after receipt by such Indemnified Party of notice of the Third-Party Claim, and shall give written notice to provide the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify with such information with respect thereto as 71
(b) If the Indemnifying Party shall not relieve them from any liability that it or he may have acknowledges in writing its obligation to indemnify the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third and all Losses that may result from a Third-Party Claim that is exclusively for civil monetary damages at his or its sole cost and expense. Such Indemnified Law pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, but not upon written notice to the obligationIndemnified Party within 15 days of receipt of a Claim Notice from the Indemnified Party in respect of such Third-Party Claim, to participate at its own expense in assume the defense thereof by counsel at the expense of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect (which expenses shall not be applied against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to payindemnity limitation herein) as the result of such Third Party Claim. Failure with counsel selected by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given and reasonably satisfactory to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in assume the defense of)of any Third-Party Claim that (i) seeks, in addition to or in lieu of monetary damages, any injunctive or other equitable relief, (ii) relates to or arises in connection with any criminal action, indictment, allegation or investigation, (iii) presents, under applicable standards of professional conduct, a conflict on any significant issue between the Indemnified Party and the Indemnifying Party or (iv) involves a material customer, supplier or distributor, and the Indemnified Party shall have the right to defend, at the expense of the Indemnifying Party, any such Third-Party Claim. The Indemnifying Party shall be entitled to have sole control over, liable for the defense or settlement fees and expenses of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against counsel employed by the Indemnified Party which, if successful, could materially interfere for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third-Party Claim within the time period and otherwise in accordance with the businessfirst sentence of this Section 7.4(b), operationsthen the Indemnified Party shall have the sole right to assume the defense of and to settle such Third-Party Claim. If the Indemnifying Party assumes the defense of such Third-Party Claim, assetsthen the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, condition but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (financial i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or otherwise(ii) the named parties to the Third-Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third-Party Claim, then the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or prospects under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third-Party Claim, then the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third- Party Claim if such settlement, compromise or judgment (i) involves a finding or admission of wrongdoing, (ii) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liability in respect of such Third-Party Claim or (iii) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder. 72
(c) An Indemnified Party seeking indemnification in respect of, arising out of or involving a Loss or a claim or demand hereunder that does not involve a Third-Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim”) shall deliver a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such Direct Claim, and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request, to the extent such information is reasonably available. The failure to deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VII except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VII. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
(d) The indemnification required hereunder shall be made by prompt payment by the Indemnifying Party of the amount of actual Losses in connection therewith, as and when bills are received by the Indemnifying Party or Losses incurred have been notified to the Indemnifying Party.
(e) The Indemnifying Party shall not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(f) Notwithstanding the provisions of Section 9.9, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third-Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere. Section 7.5 Remedies Not Affected by Investigation, Disclosure or Knowledge. If the transactions contemplated hereby are consummated, subject to the limitations set forth in this Agreement, the Buyer expressly reserves the right to seek indemnity or other remedy for any Losses arising out of or relating to any breach of any representation, warranty, agreement or covenant contained herein, notwithstanding any investigation by, disclosure to, knowledge or imputed knowledge of the Buyer or any of its Representatives in respect of any fact or circumstance that reveals the occurrence of any such breach, whether before or after the execution and delivery hereof. In furtherance of the foregoing, the Seller agrees that as knowledge or lack of reliance shall not be a defense in law or equity to any claim of breach of representation, warranty or covenant by the Seller herein, the Seller shall not in any proceeding concerning a breach or alleged breach of any representation, warranty or covenant herein, or any indemnity thereof, seek information concerning knowledge or reliance of the Buyer or any of its Representatives, through deposition, discovery or otherwise or seek to introduce evidence or argument in any proceeding regarding the knowledge or lack of reliance of the Buyer or any of 73
Appears in 1 contract
Procedures. If (ia) A Person that may be entitled to be indemnified under this Agreement (the “Indemnified Party”), shall promptly notify the party or parties liable for such indemnification (the “Indemnifying Party”) in writing of any Stockholder Event of Breach occurs pending or is alleged and a UAG threatened claim or demand that the Indemnified Party asserts that has determined has given or would reasonably be expected to give rise to such right of indemnification (including a pending or threatened claim or demand asserted by a third party against the Stockholder have become obligated to a UAG Indemnified Party pursuant to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as , such claim being a "“Third Party Claim," in each case as the context so requires”), describing in reasonable detail the facts and circumstances with respect to the subject matter of such Indemnified Party claim or demand (to the extent then known); provided that the failure to provide such notice shall give written notice to not release the Indemnifying Party from any of its or his obligation obligations under this Article IX except to provide indemnification hereunder, provided that any failure to so notify the extent the Indemnifying Party shall not relieve them from any liability is actually prejudiced by such failure, it being agreed that it notices for claims in respect of a breach of a representation, warranty, covenant or he may have agreement must be delivered prior to the Indemnified Party under expiration of any applicable survival period specified in Section 9.1 for such representation, warranty, covenant or agreement.
(b) Subject to the provisions of this ARTICLE 9. If such notice relates to a Third Party ClaimSection 9.4, each the Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligationat its sole expense, to participate at its own expense in the defense thereof be represented by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party its choice, which must be reasonably satisfactory to the extent reasonably possibleIndemnified Party and to defend against, negotiate, settle or otherwise deal with any Third Party Claim, or otherwise assume the defense of any Third Party Claim, which relates to any Losses alleged to be indemnifiable by it hereunder. If the Indemnifying Party fails timely elects to defenddefend against, contest negotiate, settle or otherwise protect against such deal with any Third Party Claim, or otherwise assume the defense of any Third Party Claim, which relates to any Losses alleged to be indemnifiable by it hereunder, it shall, within twenty (20) days of the Indemnified Party’s written notice of the assertion of such Third Party Claim pursuant to Section 9.4(a), notify the Indemnified Party of its intent to do so; provided that the Indemnifying Party must conduct its defense of the Third Party Claim reasonably diligently thereafter in order to preserve its rights in this regard. If the Indemnifying Party elects not to defend against, negotiate, settle or otherwise deal with any Third Party Claim, or otherwise assume the defense of any Third Party Claim, which relates to any Losses alleged to be indemnifiable by it hereunder or fails to notify the Indemnified Party of its election as herein provided (or fails to conduct its defense of the Third Party Claim reasonably diligently), the Indemnified Party may defend against, negotiate, settle or otherwise deal with such Third Party Claim with counsel of its own choosing (at the Indemnifying Party’s expense; provided, that the Indemnifying Party shall not be required to pay for more than one such counsel (plus any appropriate local counsel)) and the Indemnifying Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend participate in any such Third Party Claim within fifteen (15) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claimdefense with separate counsel. If the Indemnifying Party assumes shall assume the defense of the particular any Third Party Claim, the Indemnifying Indemnified Party shall notmay participate, at its own expense, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of ; provided that such Indemnified Party. In additionParty shall be entitled to participate in any such defense with separate counsel at the expense of the Indemnifying Party if (i) so requested by the Indemnifying Party to participate or (ii) in the reasonable opinion of counsel to the Indemnified Party a conflict or potential 1414958.12A-NYCSR03A - MSW conflict exists between the Indemnified Party and the Indemnifying Party that would make such separate representation advisable; provided, further, that the Indemnifying Party shall not enter into be required to pay for more than one such counsel (plus any appropriate local counsel) for all Indemnified Parties in connection with any Third Party Claim. Each party hereto agrees to provide reasonable access to each other party to such documents and information as may reasonably be requested in connection with the defense, negotiation or settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding anything in this Section 9.4 to the foregoingcontrary, no Indemnified Party shall, without the prior written consent of the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of)Party, and the Indemnified Party shall be entitled to have sole control over, the defense settle or settlement of compromise any Third Party Claim or permit a default or consent to entry of any Judgment with respect to any Third Party Claim. If the extent Indemnifying Party has assumed the defense and control of a Third Party Claim, it shall not to consent to a settlement or compromise of, or the entry of Judgment arising from, any Third Party Claim seeks an orderwithout the consent of any Indemnified Party unless (A) the sole relief provided is monetary damages, injunction (B) there is no finding or other equitable relief against admission of any violation of Law or any violation of the rights of any Person, and (C) the Indemnified Party which, if successful, could materially interfere is granted an unconditional release from all Liability with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partyrespect to such claim.
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Procedures. If (ia) In the event that any Stockholder Event claim shall be asserted by any third party against the Buyer Indemnitees or Seller Indemnitees (Buyer Indemnitees or Seller Indemnitees, as the case may be, hereinafter, the "Indemnitees"), which, if sustained, would result in a Deficiency, then the Indemnitees, within ten (10) days after learning of Breach occurs or is alleged such claim, shall notify the Indemnifying Party of such claim describing in reasonable detail the facts giving rise to the claim, and shall extend to the Indemnifying Party a UAG Indemnified Party asserts reasonable opportunity to control and to defend against such claim, at the Indemnifying Party's sole expense and through legal counsel acceptable to the Indemnitees, provided that the Stockholder Indemnifying Party proceeds in good faith, expeditiously and diligently. The Indemnitees shall, at their option and expense, which expense shall not constitute a Deficiency, have become obligated the right to a UAG Indemnified Party pursuant participate in, but not to SECTION 9.1, or if any Stockholder's Third Party Claim is begun, made or instituted as a result of which the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9control, any UAG Indemnified defense undertaken by the Indemnifying Party with legal counsel of their own selection. No settlement or compromise of any claim which may result in a Deficiency may be made by the Indemnifying Party without the prior written consent of the Indemnitees unless: (A) prior to such settlement or compromise the Indemnifying Party acknowledges in writing its obligation to pay in full the amount of the settlement or compromise and all associated expenses; and (B) the Indemnitees are furnished with a full and unconditional release from the party or parties asserting the claim.
(b) In the event that the Indemnitees assert the existence of any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and Deficiency against the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party they shall give written notice to the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to nature and amount of the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possibleDeficiency asserted. If the Indemnifying Party fails timely to defendParty, contest within a period of thirty (30) days (or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shorter period as shall be entitled reasonable in the circumstances) after the giving of notice by the Indemnitees, shall not give written notice to recover the entire Cost thereof from Indemnitees announcing its intent to contest such assertion of the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid Indemnitees (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure notice by the Indemnifying Party being hereinafter referred to notify as the "Contest Notice"), such Indemnified Party assertion of its the Indemnitees shall be deemed accepted and the amount of the Deficiency shall be deemed established. In the event, however, that a Contest Notice is given to the Indemnitees within said 30-day period (or their election such shorter period as set forth above), then the contested assertion of a Deficiency shall be settled by arbitration to defend any such Third Party Claim within fifteen (15) days after notice thereof be held in Philadelphia, Pennsylvania in accordance with the Commercial Rules of the American Arbitration Association then existing. The determination of the arbitrator shall have been given be delivered in writing to the Indemnifying Party and the Indemnitees and shall be final, binding and conclusive upon all of the parties hereto, and the amount of the Deficiency, if any, determined to exist, shall be deemed a waiver by established.
(c) The Indemnitees and the Indemnifying Party may agree in writing, at any time, as to the existence and amount of its or their right to defend such Third Party Claim. If a Deficiency, and, upon the Indemnifying Party assumes the defense of the particular Third Party Claim, the Indemnifying Party shall not, in the defense execution of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of agreement such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control (but Deficiency shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partydeemed established.
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Procedures. If (ia) any Stockholder Event of Breach occurs or is alleged and In order for a UAG Buyer Indemnified Party asserts that the Stockholder have become obligated to a UAG or Seller Indemnified Party pursuant (the “Indemnified Party”) to SECTION 9.1, or if be entitled to any Stockholder's Third Party Claim is begun, made or instituted indemnification provided for under this Agreement as a result of which a Loss or a claim or demand made by any Person against the Stockholder may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "“Third Party Claim," in each case as the context so requires”), such Indemnified Party shall give deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice to of the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, describing in reasonable detail (i) the facts giving rise to any claim for indemnification hereunder, (ii) the amount or method of computation of the amount of such claim, (iii) each Indemnifying Partyindividual item of Loss included in the amount so stated, jointly to the extent known, (iv) the date such item was paid or properly accrued, and severally(v) the nature of the breach of representation, agrees warranty, covenant or agreement with respect to defend, contest or otherwise protect which such Indemnified Party against claims to be entitled to indemnification hereunder (all of the foregoing, the “Claim Information”), and shall provide any other information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such Third notice, however, shall not release the Indemnifying Party Claim at his from any of its obligations under this Article IX except to the extent that the Indemnifying Party forfeits rights or its sole cost and expense. Such Indemnified defenses by reason of such failure.
(b) The Indemnifying Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party upon written notice to the extent reasonably possible. If Indemnified Party within 30 days of receipt of notice from the Indemnifying Indemnified Party fails timely to defend, contest or otherwise protect against of the commencement of such Third Party Claim, such Indemnified Party shall have to assume the right to do so, including, without limitation, defense thereof at the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from expense of the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure with counsel selected by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given and reasonably satisfactory to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party ClaimIndemnified Party. If the Indemnifying Party assumes the defense of the particular such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party; provided, that if in the reasonable opinion of counsel for the Indemnified Party, there is a conflict of interest between the Indemnified Party and the Indemnifying Party, the Indemnifying Party shall not, be responsible for the reasonable fees and expenses of one counsel to such Indemnified Party in connection with such defense. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with and which releases the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim (except with the written consent of such Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability completely in respect of connection with such Third Party Claim; provided, that such settlement, compromise or discharge (i) does not impose any equitable or other non-monetary remedies or obligations on the Indemnified Party but involves solely the payment of money damages for which the Indemnified Party will be indemnified hereunder, (ii) does not involve a finding or admission of wrongdoing or any violation of Law or any violation of the rights of any Person by the Indemnified Party and (iii) poses no reasonable danger of establishing a precedent that may be adverse to the Indemnified Party’s interest. Notwithstanding Whether or not the foregoingIndemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim containing the Claim Information promptly to the Indemnifying Party, and shall provide any other information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article IX except to the extent that the Indemnifying Party forfeits rights or defenses as a result of such failure. The Indemnified Party shall reasonably cooperate and assist the Indemnifying Party in determining the validity of any claim for indemnity by the Indemnified Party and in otherwise resolving such matters. Such assistance and cooperation shall include providing reasonable access to and copies of information, records and documents relating to such matters, furnishing employees to assist in the investigation, defense and resolution of such matters and providing legal and business assistance with respect to such matters. For the avoidance of doubt, the Indemnified Party shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of commence any Third Party Claim to the extent the Third Party Claim seeks an order, injunction or other equitable relief Action against the Indemnified Indemnifying Party which, if successful, could materially interfere with for indemnification pursuant to this Section 9.4(c) unless the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Partynotice and procedural provisions set forth herein shall have been satisfied prior thereto.
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Sources: Share Purchase Agreement (Avino Silver & Gold Mines LTD)
Procedures. If Except as otherwise provided in Article VI with respect to Tax Claims:
(ia) any Stockholder Event of Breach occurs or is alleged and a UAG A Parent Indemnified Party asserts that the Stockholder have become obligated to a UAG or Effective Time Holder Indemnified Party pursuant to SECTION 9.1seeking indemnification (the “Indemnified Party”) in respect of, arising out of or if any Stockholder's involving a Third Party Claim is begun, made or instituted as shall deliver a result Claim Notice in respect thereof to the Effective Time Holders (by means of which delivery to the Stockholder may become obligated to a UAG Indemnified Party hereunderHolder Representative), or to Parent, as applicable (ii) a UAG Event of Breach occurs the Effective Time Holders or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to SECTION 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this ARTICLE 9, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes Parent in such case are referred to herein as an "Indemnified Party" and UAG and the Stockholder are sometimes referred to as an "“Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires”), with reasonable promptness after receipt by such Indemnified Party shall give written of notice to of the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from any liability that it or he may have to the Indemnified Party under this ARTICLE 9. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to deliver a Claim Notice, or any delay in providing such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent reasonably possible. If (and only to the extent) that the Indemnifying Party fails timely to defend, contest is materially prejudiced by such failure or otherwise protect against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise Claim Notice is not delivered on or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been given prior to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its or their right to defend such Third Party Claim. If the Indemnifying Party assumes the defense expiration of the particular Third Party Claim, the Indemnifying Party shall not, in the defense of such Third Party Claim, consent to entry of any judgment or enter into any settlement, except with the written consent of such Indemnified Party. In addition, the Indemnifying Party shall not enter into any settlement of any Third Party Claim applicable survival period.
(except with the written consent of such Indemnified Partyb) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Party a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the The Indemnifying Party shall not be entitled to control (but shall be entitled to participate at their own expense in assume the defense of)of any Third Party Claim, and the Indemnified Party shall have the sole right to defend, at the expense (subject to the limitations set forth in this Article VIII) of the Indemnifying Party, any such Third Party Claim. The Indemnified Party shall have the sole right at its discretion to settle any Third Party Claim; provided that if the written consent of the Holder Representative is not obtained to any settlement, such settlement shall not be entitled to have sole control overdispositive of the amount of Losses. When the Effective Time Holders are the Indemnifying Parties, the defense or settlement Holder Representative shall have the right to receive copies of any Third all pleadings, notices and communications with the third-party claimant with respect to the Third-Party Claim to the extent that receipt of such documents by the Holder Representative does not affect any privilege relating to the Indemnified Party and the Indemnified Party shall provide the Holder Representative the opportunity to consult with and participate in, but not to determine or conduct, any defense of the Third-Party Claim or settlement negotiations with respect to the Third-Party Claim, all at the sole expense of the Effective Time Holders. The Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party all witnesses, pertinent records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party.
(c) An Indemnified Party seeking indemnification in respect of, arising out of or involving a Loss or a claim or demand hereunder that does not involve a Third Party Claim seeks an orderbeing asserted against or sought to be collected from such Indemnified Party (a “Direct Claim”) shall deliver a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such Direct Claim, injunction and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent (and only to the extent) that the Indemnifying Party is materially prejudiced by such failure or such Claim Notice is not delivered on or prior to the expiration of the applicable survival period, and shall not relieve the Indemnifying Party from any other equitable relief against obligation or liability that it may have to the Indemnified Party whichor otherwise than pursuant to this Article VIII. If the Indemnifying Party does not notify the Indemnified Party within 20 Business Days following its receipt of a Claim Notice in respect of a Direct Claim that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, if successfulsuch Direct Claim specified by the Indemnified Party in such Claim Notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, could materially interfere with the businessIndemnifying Party shall pay such lesser amount promptly to the Indemnified Party, operations, assets, condition (financial without prejudice to or otherwise) or prospects waiver of the Indemnified Party’s claim for the difference.
(d) The indemnification required hereunder shall be made by prompt payment by the Escrow Agent pursuant to joint written instruction by Parent and the Holder Representative (to the extent of any amounts then held in the Indemnity Escrow Fund if applicable) or the Indemnifying Party (to the extent any such Losses are not promptly paid from the Indemnity Escrow Fund) of the amount of actual Losses in connection therewith as and when bills are received by the Indemnifying Party or Losses incurred have been notified to the Indemnifying Party. Following the delivery of a Claim Notice to the Holder Representative, the Holder Representative and its representatives and agents shall be given such access (including electronic access, to the extent available) as they may reasonably require during normal business hours to the books and records of the Surviving Corporation and access at mutually agreeable times during normal business hours to such personnel or representatives of the Surviving Corporation and Parent, including but not limited to the individuals responsible for the matters that are subject of the Claim Notice, as they may reasonably require for the purposes of investigating or resolving any disputes or responding to any matters or inquiries raised in the Claim Notice.
(e) The Indemnifying Party shall not be entitled to require that any Action be made or brought against any other Person before Action is brought or claim is made against it hereunder by the Indemnified Party.
(f) Notwithstanding the provisions of Section 10.10, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere, including by complying with the notice procedures of Section 10.5.
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