Right to Defend, Etc. (a) Any Buyer Indemnified Party may make Claims for indemnification hereunder by giving prompt written notice thereof to the Majority Shareholder, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any third party (a “Third Party Claim”), the Buyer Indemnified Party shall also give the Majority Shareholder written notice of such claim as to which such Buyer Indemnified Party may request indemnification hereunder or as to which the Threshold may be applied as soon as is practicable and in any event within twenty (20) days of the time that such Buyer Indemnified Party learns of such Claim; provided, however, that the failure to do so shall not relieve the Majority Shareholder from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that (i) such Third Party Claim does not seek to impose any Liability on the Buyer Indemnified Party other than money damages and (ii) the reasonably foreseeable Losses of such claim, together with all other claims for indemnification hereunder, exceed the Threshold but do not exceed the Cap, the Majority Shareholder shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Buyer Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim the Majority Shareholder fails to diligently prosecute or withdraws from such defense, the Buyer Indemnified Party shall have the right to undertake the defense. If the Majority Shareholder is not controlling such defense, the Majority Shareholder may participate therein at its own expense. Unless, in the reasonable opinion of competent counsel to the Buyer Indemnified Party, a conflict of interest exists between the interests of the Buyer Indemnified Party and the Majority Shareholder that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by the Majority Shareholder (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects to assume the defense of any Third Party Claim, the Buyer Indemnified Party shall provide the Majority Shareholder and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with the Majority Shareholder in the defense or settlement thereof. The party controlling the defense of such Claim shall not consent to a settlement of, or the entry of any judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that the Majority Shareholder may consent to such a settlement or entry of judgment without the consent of the Buyer Indemnified Parties to the extent it (a) includes an express and unconditional release of the Buyer Indemnified Parties of all liability with respect to such Claim, except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, and the amount payable thereunder does not exceed the Cap or the limitations contemplated by Section 9.06(c), as applicable, (b) imposes no injunctive or other equitable relief against any Buyer Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Buyer Indemnified Parties refuse to consent to a bona fide offer of settlement that the Majority Shareholder wishes to accept and that (w) involves no payment of money by such Buyer Indemnified Parties (other than pursuant to the Threshold), (x) involves no material limitation on the future operation of the business of the Company and its Subsidiaries, (y) does not involve a finding or admission of wrongdoing and (z) releases such Buyer Indemnified Parties from all liability in connection with such Claim except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, the Majority Shareholder may reassign the defense of such claim to such Buyer Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by the Majority Shareholder, at the sole cost and expense of such Buyer Indemnified Parties. In such event, the obligation of the Majority Shareholder with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Buyer Indemnified Parties refused to accept or (ii) the aggregate Losses of the Buyer Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith). (b) Any Seller Indemnified Party may make Claims for indemnification hereunder by giving prompt written notice thereof to Buyer, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any Third Party Claim, the Seller Indemnified Party shall also give Buyer written notice of such claim as to which such Seller Indemnified Party may request indemnification hereunder as is practicable and in any event within twenty (20) days of the time that such Seller Indemnified Party learns of such Claim; provided, however, that the failure to do so shall not relieve Buyer from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that such Third Party Claim does not seek to impose any Liability on the Seller Indemnified Party other than money damages, Buyer shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Seller Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim Buyer fails to diligently prosecute or withdraws from such defense, the Seller Indemnified Party shall have the right to undertake the defense. If Buyer is not controlling such defense, Buyer may participate therein at its own expense. Unless, in the reasonable opinion of competent counsel to the Seller Indemnified Party, a conflict of interest exists between the interests of the Seller Indemnified Party and Buyer that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by Buyer (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects to assume the defense of any Third Party Claim, the Seller Indemnified Party shall provide Buyer and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with Buyer in the defense or settlement thereof. The party controlling the defense of such Claim shall not consent to a settlement of, or the entry of any judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that Buyer may consent to such a settlement or entry of judgment without the consent of the Seller Indemnified Parties to the extent it (a) includes an express and unconditional release of the Seller Indemnified Parties of all liability with respect to such Claim, and the amount payable thereunder does not exceed the limitations contemplated by Section 9.06(c), (b) imposes no injunctive or other equitable relief against any Seller Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Seller Indemnified Parties refuse to consent to a bona fide offer of settlement that Buyer wishes to accept and that (w) involves no payment of money by such Seller Indemnified Parties, (x) does not involve a finding or admission of wrongdoing and (y) releases such Seller Indemnified Parties from all liability in connection with such Claim, Buyer may reassign the defense of such claim to such Seller Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by Buyer, at the sole cost and expense of such Seller Indemnified Parties. In such event, the obligation of Buyer with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Seller Indemnified Parties refused to accept or (ii) the aggregate Losses of the Seller Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith).
Appears in 2 contracts
Samples: Acquisition Agreement (Kennedy Cabot Acquisition, LLC), Acquisition Agreement (Siebert Financial Corp)
Right to Defend, Etc. (a) Any Buyer Indemnified Party may make Claims for If the facts giving rise to any indemnification hereunder under this Article 8 shall involve any claim or demand by giving prompt written notice thereof any person against any of the indemnified parties relating to the Majority ShareholderShareholder Indemnified Liabilities or the Premiere Indemnified Liabilities (an "Indemnified Claim"), the indemnifying party shall be entitled to notice of such Indemnified Claim. If the indemnified party shall fail to provide the indemnifying party with notice of such Indemnified Claim prior to the end time by which the interests of the applicable survival period. If indemnification is sought for indemnifying party would be materially prejudiced as a Claim by or in respect result of its failure to have received such notice, the amount of any third indemnification to be paid to such indemnified party (with respect to such Indemnified Claim shall be reduced by the amount of any loss actually sustained by the indemnifying party as a “Third Party Claim”), the Buyer Indemnified Party shall also give the Majority Shareholder written notice result of such claim as prejudice. The indemnifying party shall be entitled (without prejudice to which such Buyer Indemnified Party may request indemnification hereunder or as to which the Threshold may be applied as soon as is practicable and in any event within twenty (20) days right of the time that such Buyer Indemnified Party learns of such Claim; provided, however, that the failure indemnified party to do so shall not relieve the Majority Shareholder from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that (i) such Third Party Claim does not seek to impose any Liability on the Buyer Indemnified Party other than money damages and (ii) the reasonably foreseeable Losses of such claim, together with all other claims for indemnification hereunder, exceed the Threshold but do not exceed the Cap, the Majority Shareholder shall have the right to direct, participate at its own expense through counsel of its own choosing that is reasonably acceptable to the Buyer Indemnified Party, in the defense or settlement prosecution of any such Third Party Claim (subject Indemnified Claim; PROVIDED that such participation shall not affect the right of the indemnifying party to control such defense or prosecution on behalf of the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects not indemnified party) to defend or ifprosecute such Indemnified Claim at its or their expense and through counsel reasonably satisfactory to the indemnified party. At any time following written notice from the indemnified party of an Indemnified Claim, after commencing the indemnifying party may assume the defense or prosecution of such Indemnified Claim by providing a written undertaking of their agreement to assume the defense or prosecution of such Indemnified Claim at their sole cost and expense in accordance with this Agreement; PROVIDED, HOWEVER, that any indemnified party may defend or prosecute such Indemnified Claim with reputable attorneys of its own choosing until it shall have received the foregoing notice from the indemnifying party; PROVIDED, FURTHER, that if the defendants in any action shall include the indemnifying party and the indemnified party, and any such defense, indemnified party shall have reasonably concluded that counsel selected by the indemnifying party has a conflict of interest which under the Rules of Professional Conduct of the California Bar Association would prohibit the representation because of the availability of different or additional defenses to any such Third Party Claim the Majority Shareholder fails to diligently prosecute or withdraws from indemnified party, such defense, the Buyer Indemnified Party indemnified party shall have the right to undertake select separate counsel reasonably acceptable to the defense. If indemnifying party to participate in the Majority Shareholder is not controlling defense of such defenseIndemnified Claim on its behalf, at the Majority Shareholder may participate therein at its own expense. Unlessexpense of the indemnifying party, 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 in the reasonable opinion of competent counsel to the Buyer Indemnified Party, a conflict of interest exists between the interests same jurisdiction arising out of the Buyer Indemnified Party and the Majority Shareholder that requires representation by separate counselsame general allegations or circumstances, in which case be liable for the fees and expenses of more than one separate firm of attorneys at any time for such separate counsel will be paid by the Majority Shareholder (subject to the limitations set forth indemnified party. The indemnified party shall cooperate fully in this Article IX, including those in Section 9.06). If the Majority Shareholder elects to assume the defense of any Third Party Claim, the Buyer Indemnified Party shall provide the Majority Shareholder and its outside counsel with access to their personnel relating to any such claim during normal business hours Claim hereunder and shall otherwise reasonably cooperate with the Majority Shareholder in the defense or settlement thereof. The party controlling the defense of such Claim shall not consent make available to a settlement of, or the entry of any judgment arising from, any such Claim without the prior written consent of the party not controlling assuming such defense pertinent information (which consent as determined through consultation with attorneys for the indemnified party) under such indemnified party's control relating thereto, but shall not be unreasonably withheld, conditioned or delayed); provided, however, that the Majority Shareholder may consent to such a settlement or entry of judgment without the consent of the Buyer Indemnified Parties to the extent it (a) includes an express and unconditional release of the Buyer Indemnified Parties of all liability with respect to such Claim, except for payments that would be required entitled to be paid by the Buyer Indemnified Parties representing the Threshold, and the amount payable thereunder does not exceed the Cap or the limitations contemplated by Section 9.06(c), as applicable, (b) imposes no injunctive or other equitable relief against any Buyer Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Buyer Indemnified Parties refuse to consent to a bona fide offer of settlement that the Majority Shareholder wishes to accept and that (w) involves no payment of money by such Buyer Indemnified Parties (other than pursuant to the Threshold), (x) involves no material limitation on the future operation of the business of the Company and its Subsidiaries, (y) does not involve a finding or admission of wrongdoing and (z) releases such Buyer Indemnified Parties from reimbursed for all liability in connection with such Claim except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, the Majority Shareholder may reassign the defense of such claim to such Buyer Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by the Majority Shareholder, at the sole cost and expense of such Buyer Indemnified Parties. In such event, the obligation of the Majority Shareholder with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Buyer Indemnified Parties refused to accept or (ii) the aggregate Losses of the Buyer Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith).
(b) Any Seller Indemnified Party may make Claims for indemnification hereunder by giving prompt written notice thereof to Buyer, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any Third Party Claim, the Seller Indemnified Party shall also give Buyer written notice of such claim as to which such Seller Indemnified Party may request indemnification hereunder as is practicable and in any event within twenty (20) days of the time that such Seller Indemnified Party learns of such Claim; provided, however, that the failure to do so shall not relieve Buyer from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that such Third Party Claim does not seek to impose any Liability on the Seller Indemnified Party other than money damages, Buyer shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Seller Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim Buyer fails to diligently prosecute or withdraws from such defense, the Seller Indemnified Party shall have the right to undertake the defense. If Buyer is not controlling such defense, Buyer may participate therein at its own expense. Unless, in the reasonable opinion of competent counsel to the Seller Indemnified Party, a conflict of interest exists between the interests of the Seller Indemnified Party and Buyer that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by Buyer (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects to assume the defense of any Third Party Claim, the Seller Indemnified Party shall provide Buyer and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with Buyer in the defense or settlement thereof. The indemnified party controlling the defense of such Claim shall not consent to a settlement of, or the entry of any judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that Buyer may consent to such a settlement or entry of judgment without the consent of the Seller Indemnified Parties to the extent it (a) includes an express and unconditional release of the Seller Indemnified Parties of all liability with respect to such Claim, and the amount payable thereunder does not exceed the limitations contemplated by Section 9.06(c), (b) imposes no injunctive or other equitable relief against any Seller Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Seller Indemnified Parties refuse to consent to a bona fide offer of settlement that Buyer wishes to accept and that (w) involves no payment of money by such Seller Indemnified Parties, (x) does not involve a finding or admission of wrongdoing and (y) releases such Seller Indemnified Parties from all liability in connection with such Claim, Buyer may reassign the defense of such claim to such Seller Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by Buyer, at the sole cost and expense of such Seller Indemnified Parties. In such event, the obligation of Buyer with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Seller Indemnified Parties refused to accept or (ii) the aggregate Losses of the Seller Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith).
Appears in 2 contracts
Samples: Merger Agreement (Premiere Radio Networks Inc), Merger Agreement (Premiere Radio Networks Inc)
Right to Defend, Etc. (a) Any Buyer Indemnified Party may make Claims for If the facts giving rise to any such indemnification hereunder shall involve any actual Claim or demand by giving prompt written notice thereof to the Majority Shareholder, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any third party against a Seller Indemnified Party or Purchaser Indemnified Party (a in each case generally referred to as an “Third Party ClaimIndemnified Party”), the Buyer Party hereto from whom indemnification is sought (the “Indemnifying Party”), the Indemnified Party shall also give the Majority Shareholder written notice of such claim as to which such Buyer Indemnified Party may request indemnification hereunder or as to which the Threshold may be applied as soon promptly as is practicable and reasonably practicable, but in any event within twenty no later than fifteen (2015) business days after receiving written notice thereof, to the Indemnifying Party of the time that such Buyer Indemnified Party learns assertion of such any Claim; provided, howeveror the commencement of any suit, that the failure to do so shall action or proceeding, by any person or entity not relieve the Majority Shareholder from any liability except a party hereto, in respect of which indemnity may be sought under this Agreement (which notice shall, to the extent that it such information is materially prejudiced by the failure or delay in giving such notice. Such notice shall state reasonably available, specify in reasonable detail the basis nature and nature amount of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that (i) such Third Party Claim does not seek to impose any Liability on the Buyer Indemnified Party other than money damages and (ii) the reasonably foreseeable Losses of such claim, together with all other claims such information as may be necessary for indemnification hereunder, exceed the Threshold but Indemnifying Party to determine that the limitations in Section 6.5 have been satisfied or do not exceed apply) and the Cap, the Majority Shareholder Indemnifying Party shall have the right be entitled to direct, participate at its expense through counsel of its own choosing that is reasonably acceptable to defend or prosecute such claim at its expense and through counsel of its own choosing, in each case, as further described in this Section 6.3. Notwithstanding the foregoing, (i) the failure to so notify the Indemnifying Party within such time shall not relieve such Indemnifying Party of any liability which it may have to any Indemnified Party unless and to the Buyer extent materially prejudiced by such delay; and (ii) the Indemnifying Party shall not be required to pay or reimburse the Indemnified Party for any costs or expenses associated with any counsel hired by the Indemnified Party prior to receipt of such notice by the Indemnifying Party. Upon receipt of such notice, the Indemnifying Party shall have the right to (a) participate in the defense of any such claim, suit, action or proceeding, and (b) upon notice to the Indemnified Party at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof with counsel of its own choice, and in the event of such assumption, shall have the right, subject to the terms hereof, to settle or compromise such claim, suit, action or proceeding; provided, that the Indemnifying Party shall not be entitled to assume control of such defense without the consent of the Indemnified Party (not to be unreasonably withheld) if and to the extent provided any such action, suit, proceeding, or claim that seeks non-monetary relief, criminal penalties, or aggregate damages greater than the Indemnifying Party’s potential liability hereunder; provided, further, however, that if the defendants in any action shall include both an Indemnifying Party and an Indemnified Party and the Indemnified Party shall have been advised by its counsel that the counsel selected by the Indemnifying Party has a conflict of interest because of the availability of different or additional defenses to the Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim the Majority Shareholder fails to diligently prosecute or withdraws from such defense, the Buyer Indemnified Party shall have the right to undertake the defense. If the Majority Shareholder is not controlling such defense, the Majority Shareholder may select separate counsel to participate therein at its own expense. Unless, in the reasonable opinion defense of competent counsel to such action on its behalf, at the Buyer expense of the Indemnifying Party; provided, further, however, that if there is more than one Indemnified Party, a conflict the Indemnifying Party shall only be required to pay the expense of interest exists between the interests of the Buyer one additional counsel other than its own. The Indemnified Party shall cooperate fully in the defense of such claim and the Majority Shareholder that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by the Majority Shareholder (subject shall make available to the limitations set forth in this Article IX, including those in Section 9.06)Indemnifying Party pertinent information under its control relating thereto. If the Majority Shareholder elects to assume any Indemnifying Party assumes the defense of any Third Party Claimsuch claim, the Buyer Indemnifying Party will hold the Indemnified Party shall provide harmless from and against any and all damages arising out of any settlement approved by such Indemnifying Party or any judgment in connection with such claim or litigation pursuant to this Article 6; subject to the Majority Shareholder and its outside counsel with access limitation set forth in Section 6.5 hereof. Any settlement or compromise made or caused to their personnel relating to be made by the Indemnified Party or the Indemnifying Party as the case may be, of any such claim during normal business hours and claim, suit, action or proceeding of the kind referred to in this Section 6.3 shall otherwise reasonably cooperate with also be binding upon the Majority Shareholder Indemnifying Party or the Indemnified Party, as the case may be, in the defense same manner as if a final judgment or settlement thereof. The party controlling decree had been entered by a court of competent jurisdiction in the defense amount of such Claim settlement or compromise; provided, that (a) no settlement, obligation, restriction or losses shall not consent to be imposed on the Indemnified Party as a result of such settlement of, or the entry of any judgment arising from, any such Claim compromise without the its prior written consent of the party not controlling such defense (consent, which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that the Majority Shareholder may consent to such a settlement or entry of judgment without the consent of the Buyer Indemnified Parties to the extent it (a) includes an express and unconditional release of the Buyer Indemnified Parties of all liability with respect to such Claim, except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, and the amount payable thereunder does not exceed the Cap or the limitations contemplated by Section 9.06(c), as applicable, (b) imposes no injunctive or other equitable relief against any Buyer the Indemnified Party and (c) does will not involve a finding compromise or admission of wrongdoing; and provided furthersettle any claim, howeversuit, that if the Buyer Indemnified Parties refuse to consent to a bona fide offer of settlement that the Majority Shareholder wishes to accept and that (w) involves no payment of money by such Buyer Indemnified Parties (other than pursuant to the Threshold), (x) involves no material limitation on the future operation of the business of the Company and its Subsidiaries, (y) does not involve a finding action or admission of wrongdoing and (z) releases such Buyer Indemnified Parties from all liability in connection with such Claim except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, the Majority Shareholder may reassign the defense of such claim to such Buyer Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by the Majority Shareholder, at the sole cost and expense of such Buyer Indemnified Parties. In such event, the obligation of the Majority Shareholder with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Buyer Indemnified Parties refused to accept or (ii) the aggregate Losses of the Buyer Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith).
(b) Any Seller Indemnified Party may make Claims for indemnification hereunder by giving prompt written notice thereof to Buyer, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any Third Party Claim, the Seller Indemnified Party shall also give Buyer written notice of such claim as to which such Seller Indemnified Party may request indemnification hereunder as is practicable and in any event within twenty (20) days of the time that such Seller Indemnified Party learns of such Claim; provided, however, that the failure to do so shall not relieve Buyer from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that such Third Party Claim does not seek to impose any Liability on the Seller Indemnified Party other than money damages, Buyer shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Seller Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim Buyer fails to diligently prosecute or withdraws from such defense, the Seller Indemnified Party shall have the right to undertake the defense. If Buyer is not controlling such defense, Buyer may participate therein at its own expense. Unless, in the reasonable opinion of competent counsel to the Seller Indemnified Party, a conflict of interest exists between the interests of the Seller Indemnified Party and Buyer that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by Buyer (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects to assume the defense of any Third Party Claim, the Seller Indemnified Party shall provide Buyer and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with Buyer in the defense or settlement thereof. The party controlling the defense of such Claim shall not consent to a settlement of, or the entry of any judgment arising from, any such Claim proceeding without the prior written consent of the party not controlling such defense (Indemnifying Party, which consent shall not be unreasonably withheld, conditioned withheld or delayed); provided. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, howeversuit, that Buyer may consent to such a settlement action or entry of judgment without the consent proceeding, all of the Seller Indemnified Parties to the extent it (a) includes an express and unconditional release of the Seller Indemnified Parties of all liability with respect to such Claim, and the amount payable thereunder does not exceed the limitations contemplated by Section 9.06(c), (b) imposes no injunctive or other equitable relief against any Seller Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Seller Indemnified Parties refuse to consent to a bona fide offer of settlement that Buyer wishes to accept and that (w) involves no payment of money by such Seller Indemnified Parties, (x) does not involve a finding or admission of wrongdoing and (y) releases such Seller Indemnified Parties from all liability hereto shall cooperate in connection with such Claim, Buyer may reassign the defense of such claim to such Seller Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by Buyer, at the sole cost and expense of such Seller Indemnified Parties. In such event, the obligation of Buyer with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Seller Indemnified Parties refused to accept or (ii) the aggregate Losses of the Seller Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith)prosecution thereof.
Appears in 2 contracts
Samples: Membership Interests Purchase Agreement (Prometheum, Inc.), Membership Interests Purchase Agreement (Prometheum, Inc.)
Right to Defend, Etc. (a) Any If the facts giving rise to any such indemnification shall involve any actual Claim or demand by any third party against a Seller Indemnified Party or Buyer Indemnified Party may make Claims for indemnification hereunder by giving prompt written notice thereof (in each case generally referred to the Majority Shareholder, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any third party (a as an “Third Party ClaimIndemnified Party”), the Buyer Indemnifying Party shall be entitled to notice of and entitled (without prejudice) to the right of any Indemnified Party shall also give the Majority Shareholder to participate at its expense through counsel of its own choosing to defend or prosecute such claim at its expense and through counsel of its own choosing if it gives written notice of such claim as its intention to do so no later than the time by which such Buyer the interests of the Indemnified Party may request indemnification hereunder or would be materially prejudiced as a result of its failure to which the Threshold may be applied as soon as is practicable and in any event within twenty (20) days of the time that have received such Buyer Indemnified Party learns of such Claimnotice; provided, however, that if the failure to do so defendants in any action shall not relieve include both an Indemnifying Party and an Indemnified Party and the Majority Shareholder from any liability except Indemnified Party shall have been advised by its counsel that the counsel selected by the Indemnifying Party has a conflict of interest because of the availability of different or additional defenses to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that (i) such Third Party Claim does not seek to impose any Liability on the Buyer Indemnified Party other than money damages and (ii) the reasonably foreseeable Losses of such claim, together with all other claims for indemnification hereunder, exceed the Threshold but do not exceed the Cap, the Majority Shareholder shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Buyer Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim the Majority Shareholder fails to diligently prosecute or withdraws from such defense, the Buyer Indemnified Party shall have the right to undertake the defense. If the Majority Shareholder is not controlling such defense, the Majority Shareholder may participate therein at its own expense. Unless, in the reasonable opinion of competent select separate counsel to the Buyer Indemnified Party, a conflict of interest exists between the interests of the Buyer Indemnified Party and the Majority Shareholder that requires representation by separate counsel, participate in which case the fees and expenses of one such separate counsel will be paid by the Majority Shareholder (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects to assume the defense of any Third Party Claim, the Buyer Indemnified Party shall provide the Majority Shareholder and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with the Majority Shareholder in the defense or settlement thereof. The party controlling the defense of such Claim shall not consent to a settlement ofaction on its behalf, or at the entry of any judgment arising from, any such Claim without the prior written consent expense of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed)Indemnifying Party; provided, however, that the Majority Shareholder may consent to such a settlement or entry of judgment without the consent of the Buyer Indemnified Parties to the extent it (a) includes an express and unconditional release of the Buyer Indemnified Parties of all liability with respect to such Claim, except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, and the amount payable thereunder does not exceed the Cap or the limitations contemplated by Section 9.06(c), as applicable, (b) imposes no injunctive or other equitable relief against any Buyer Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if there is more than one Indemnified Party, the Buyer Indemnified Parties refuse to consent to a bona fide offer of settlement that the Majority Shareholder wishes to accept and that (w) involves no payment of money by such Buyer Indemnified Parties (other than pursuant to the Threshold), (x) involves no material limitation on the future operation of the business of the Company and its Subsidiaries, (y) does not involve a finding or admission of wrongdoing and (z) releases such Buyer Indemnified Parties from all liability in connection with such Claim except for payments that would Indemnifying Party shall only be required to pay the expense of one additional counsel other than its own. Notwithstanding the foregoing, (i) the failure to so notify the Indemnifying Party within such time as would materially prejudice the Indemnifying Party’s right to defend or prosecute such claim shall relieve such Indemnifying Party of any liability which it may have to any Indemnified Party; and (ii) the Indemnifying Party shall not be paid required to pay or reimburse the Indemnified Party for any costs or expenses associated with any counsel hired by the Buyer Indemnified Parties representing Party prior to receipt of such notice by the Threshold, the Majority Shareholder may reassign Indemnifying Party. The Indemnified Party shall cooperate fully in the defense of such claim and shall make available to such Buyer Indemnified Partiesthe Indemnifying Party pertinent information under its control relating thereto, who may then continue but shall be entitled to pursue the defense of such matterbe reimbursed, free of any participation by the Majority Shareholder, at the sole cost and expense of such Buyer Indemnified Parties. In such event, the obligation of the Majority Shareholder with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Buyer Indemnified Parties refused to accept or (ii) the aggregate Losses of the Buyer Indemnified Parties with respect to such claim (includingas provided in this Article XI, for the avoidance of doubt, any all out-of-pocket costs and expenses payable to third parties incurred by it in connection therewith).
(b) Any Seller Indemnified Party may make Claims for indemnification hereunder by giving prompt written notice thereof to Buyer, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any Third Indemnifying Party Claim, the Seller Indemnified Party shall also give Buyer written notice of such claim as to which such Seller Indemnified Party may request indemnification hereunder as is practicable and in any event within twenty (20) days of the time that such Seller Indemnified Party learns of such Claim; provided, however, that the failure to do so shall not relieve Buyer from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that such Third Party Claim does not seek to impose any Liability on the Seller Indemnified Party other than money damages, Buyer shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Seller Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim Buyer fails to diligently prosecute or withdraws from such defense, the Seller Indemnified Party shall have the right to undertake the defense. If Buyer is not controlling such defense, Buyer may participate therein at its own expense. Unless, in the reasonable opinion of competent counsel to the Seller Indemnified Party, a conflict of interest exists between the interests of the Seller Indemnified Party and Buyer that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by Buyer (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects to assume assumes the defense of any Third Party Claimsuch claim, the Seller Indemnifying Party will hold the Indemnified Party shall provide Buyer harmless from and its outside counsel with access to their personnel relating to against any such claim during normal business hours and shall otherwise reasonably cooperate with Buyer in the defense or settlement thereof. The party controlling the defense of such Claim shall not consent to a settlement of, or the entry all damages arising out of any judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that Buyer may consent to such a settlement or entry of judgment without the consent of the Seller Indemnified Parties to the extent it (a) includes an express and unconditional release of the Seller Indemnified Parties of all liability with respect to such Claim, and the amount payable thereunder does not exceed the limitations contemplated by Section 9.06(c), (b) imposes no injunctive or other equitable relief against any Seller Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Seller Indemnified Parties refuse to consent to a bona fide offer of settlement that Buyer wishes to accept and that (w) involves no payment of money approved by such Seller Indemnified Parties, (x) does not involve a finding Indemnifying Party or admission of wrongdoing and (y) releases such Seller Indemnified Parties from all liability any judgment in connection with such Claimclaim or litigation. Payment by an Indemnifying Party to an Indemnified Party shall be made within ten days after demand, Buyer unless there is a claim or demand by a third party in which event payment shall be made within ten days after final judgment, settlement or compromise, as the case may reassign the defense of such claim to such Seller Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by Buyer, at the sole cost and expense of such Seller Indemnified Parties. In such event, the obligation of Buyer with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Seller Indemnified Parties refused to accept or (ii) the aggregate Losses of the Seller Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith)be.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Siebert Financial Corp), Asset Purchase Agreement (Siebert Financial Corp)
Right to Defend, Etc. (a) Any Buyer Indemnified Party may make Claims for If the facts giving rise to any such indemnification hereunder shall involve any actual Claim or demand by giving prompt written notice thereof to the Majority Shareholder, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any third party against a Seller Indemnified Party or Purchaser Indemnified Party (a in each case generally referred to as an “Third Party ClaimIndemnified Party”), the Buyer Party hereto from whom indemnification is sought (the “Indemnifying Party”), the Indemnified Party shall also give the Majority Shareholder written notice of such claim as to which such Buyer Indemnified Party may request indemnification hereunder or as to which the Threshold may be applied as soon promptly as is practicable and reasonably practicable, but in any event within twenty no later than fifteen (2015) business days after receiving written notice thereof, to the Indemnifying Party of the time that such Buyer Indemnified Party learns assertion of such any Claim; provided, howeveror the commencement of any suit, that the failure to do so shall action or proceeding, by any person or entity not relieve the Majority Shareholder from any liability except a party hereto, in respect of which indemnity may be sought under this Agreement (which notice shall, to the extent that it such information is materially prejudiced by the failure or delay in giving such notice. Such notice shall state reasonably available, specify in reasonable detail the basis nature and nature amount of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that (i) such Third Party Claim does not seek to impose any Liability on the Buyer Indemnified Party other than money damages and (ii) the reasonably foreseeable Losses of such claim, together with all other claims such information as may be necessary for indemnification hereunder, exceed the Threshold but Indemnifying Party to determine that the limitations in Section 6.5 have been satisfied or do not exceed apply) and the Cap, the Majority Shareholder Indemnifying Party shall have the right be entitled to direct, participate at its expense through counsel of its own choosing that is reasonably acceptable to defend or prosecute such claim at its expense and through counsel of its own choosing, in each case, as further described in this Section 6.3. Notwithstanding the foregoing, (i) the failure to so notify the Indemnifying Party within such time shall not relieve such Indemnifying Party of any liability which it may have to any Indemnified Party unless and to the Buyer extent materially prejudiced by such delay; and (ii) the Indemnifying Party shall not be required to pay or reimburse the Indemnified Party for any costs or expenses associated with any counsel hired by the Indemnified Party prior to receipt of such notice by the Indemnifying Party. Upon receipt of such notice, the Indemnifying Party shall have the right to (a) participate in the defense of any such claim, suit, action or proceeding, and (b) upon notice to the Indemnified Party at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof with counsel of its own choice, and in the event of such assumption, shall have the right, subject to the terms hereof, to settle or compromise such claim, suit, action or proceeding; provided, that the Indemnifying Party shall not be entitled to assume control of such defense without the consent of the Indemnified Party (not to be unreasonably withheld) if and to the extent provided any such action, suit, proceeding, or claim that seeks non-monetary relief, criminal penalties, or aggregate damages greater than the Indemnifying Party’s potential liability hereunder; provided, further, however, that if the defendants in any action shall include both an Indemnifying Party and an Indemnified Party and the Indemnified Party shall have been advised by its counsel that the counsel selected by the Indemnifying Party has a conflict of interest because of the availability of different or additional defenses to the Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim the Majority Shareholder fails to diligently prosecute or withdraws from such defense, the Buyer Indemnified Party shall have the right to undertake the defense. If the Majority Shareholder is not controlling such defense, the Majority Shareholder may select separate counsel to participate therein at its own expense. Unless, in the reasonable opinion defense of competent counsel to such action on its behalf, at the Buyer expense of the Indemnifying Party; provided, further, however, that if there is more than one Indemnified Party, a conflict the Indemnifying Party shall only be required to pay the expense of interest exists between the interests of the Buyer one additional counsel other than its own. The Indemnified Party shall cooperate fully in the defense of such claim and the Majority Shareholder that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by the Majority Shareholder (subject shall make available to the limitations set forth in this Article IX, including those in Section 9.06)Indemnifying Party pertinent information under its control relating thereto. If the Majority Shareholder elects to assume any Indemnifying Party assumes the defense of any Third Party Claimsuch claim, the Buyer Indemnifying Party will hold the Indemnified Party shall provide harmless from and against any and all damages arising out of any settlement approved by such Indemnifying Party or any judgment in connection with such claim or litigation pursuant to this Article 6; subject to the Majority Shareholder and its outside counsel with access limitation set forth in Section 6.5 hereof. Any settlement or compromise made or caused to their personnel relating to be made by the Indemnified Party or the Indemnifying Party as the case may be, of any such claim during normal business hours and claim, suit, action or proceeding of the kind referred to in this Section 6.3 shall otherwise reasonably cooperate with also be binding upon the Majority Shareholder Indemnifying Party or the Indemnified Party, as the case may be, in the defense same manner as if a final judgment or settlement thereof. The party controlling decree had been entered by a court of competent jurisdiction in the defense amount of such Claim settlement or compromise; provided, that (a) no settlement, obligation, restriction or losses shall not consent to be imposed on the Indemnified Party as a result of such settlement of, or the entry of any judgment arising from, any such Claim compromise without the its prior written consent of the party not controlling such defense (consent, which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that the Majority Shareholder may consent to such a settlement or entry of judgment without the consent of the Buyer Indemnified Parties to the extent it (a) includes an express and unconditional release of the Buyer Indemnified Parties of all liability with respect to such Claim, except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, and the amount payable thereunder does not exceed the Cap or the limitations contemplated by Section 9.06(c), as applicable, (b) imposes no injunctive or other equitable relief against any Buyer the Indemnified Party and (c) does will not involve a finding compromise or admission of wrongdoing; and provided furthersettle any claim, howeversuit, that if the Buyer Indemnified Parties refuse to consent to a bona fide offer of settlement that the Majority Shareholder wishes to accept and that (w) involves no payment of money by such Buyer Indemnified Parties (other than pursuant to the Threshold), (x) involves no material limitation on the future operation of the business of the Company and its Subsidiaries, (y) does not involve a finding action or admission of wrongdoing and (z) releases such Buyer Indemnified Parties from all liability in connection with such Claim except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, the Majority Shareholder may reassign the defense of such claim to such Buyer Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by the Majority Shareholder, at the sole cost and expense of such Buyer Indemnified Parties. In such event, the obligation of the Majority Shareholder with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Buyer Indemnified Parties refused to accept or (ii) the aggregate Losses of the Buyer Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith).
(b) Any Seller Indemnified Party may make Claims for indemnification hereunder by giving prompt written notice thereof to Buyer, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any Third Party Claim, the Seller Indemnified Party shall also give Buyer written notice of such claim as to which such Seller Indemnified Party may request indemnification hereunder as is practicable and in any event within twenty (20) days of the time that such Seller Indemnified Party learns of such Claim; provided, however, that the failure to do so shall not relieve Buyer from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that such Third Party Claim does not seek to impose any Liability on the Seller Indemnified Party other than money damages, Buyer shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Seller Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim Buyer fails to diligently prosecute or withdraws from such defense, the Seller Indemnified Party shall have the right to undertake the defense. If Buyer is not controlling such defense, Buyer may participate therein at its own expense. Unless, in the reasonable opinion of competent counsel to the Seller Indemnified Party, a conflict of interest exists between the interests of the Seller Indemnified Party and Buyer that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by Buyer (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects to assume the defense of any Third Party Claim, the Seller Indemnified Party shall provide Buyer and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with Buyer in the defense or settlement thereof. The party controlling the defense of such Claim shall not consent to a settlement of, or the entry of any judgment arising from, any such Claim proceeding without the prior written consent of the party not controlling such defense (Indemnifying Party, which consent shall not be unreasonably withheld, conditioned withheld or delayed); provided. Whether or not the Indemnifying Party chooses to defend or prosecute any such claim, howeversuit, that Buyer may consent to such a settlement action or entry of judgment without the consent proceeding, all of the Seller Indemnified Parties to the extent it (a) includes an express and unconditional release of the Seller Indemnified Parties of all liability with respect to such Claim, and the amount payable thereunder does not exceed the limitations contemplated by Section 9.06(c), (b) imposes no injunctive or other equitable relief against any Seller Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Seller Indemnified Parties refuse to consent to a bona fide offer of settlement that Buyer wishes to accept and that (w) involves no payment of money by such Seller Indemnified Parties, (x) does not involve a finding or admission of wrongdoing and (y) releases such Seller Indemnified Parties from all liability parties hereto shall cooperate in connection with such Claim, Buyer may reassign the defense of such claim to such Seller Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by Buyer, at the sole cost and expense of such Seller Indemnified Parties. In such event, the obligation of Buyer with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Seller Indemnified Parties refused to accept or (ii) the aggregate Losses of the Seller Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith)prosecution thereof.
Appears in 2 contracts
Samples: Equity Interests Purchase Agreement (Siebert Financial Corp), Equity Interests Purchase Agreement (Siebert Financial Corp)
Right to Defend, Etc. (a) Any Buyer Indemnified Party may make Claims for If the facts giving rise to any such indemnification hereunder shall involve any actual Claim or demand by giving prompt written notice thereof to the Majority Shareholder, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any third party (a “Third Party Claim”)against an Indemnified Party, the Buyer indemnifying party shall be entitled to notice of and entitled to defend or prosecute such Claim at its expense and through counsel of its own choosing if it advises in writing of its intention to do so to the Indemnified Party within thirty (30) days after notice of such Claim has been given to the indemnifying party (without prejudice to the right of any Indemnified Party to participate at its expense through counsel of its own choosing). Such Indemnified Party shall also give cooperate in the Majority Shareholder written notice of such claim as to which such Buyer Indemnified Party may request indemnification hereunder or as to which the Threshold may be applied as soon as is practicable and in any event within twenty (20) days of the time that such Buyer Indemnified Party learns defense and/or settlement of such Claim, but shall be entitled to be reimbursed, as provided herein, for all costs and expenses incurred by it in connection therewith. No settlement of any Claim may be made without the consent of the indemnifying party, which consent may not be unreasonably withheld; provided, however, that if such indemnifying party has been offered the failure opportunity to defend such Claim and has elected not to do so shall not relieve then settlement may be made without the Majority Shareholder from consent of the indemnifying party.
(b) Notwithstanding Section 11.03(a) hereof, if, in the reasonable opinion of Complete, any liability except to the extent that it is Claim involves an issue or matter which could have a materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that (i) such Third Party Claim does not seek to impose any Liability adverse effect on the Buyer Indemnified Party other than money damages business, operations, assets or prospects of Complete or Newco, then, and (ii) the reasonably foreseeable Losses of in such claimevent, together with all other claims for indemnification hereunder, exceed the Threshold but do not exceed the Cap, the Majority Shareholder Complete shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Buyer Indemnified Party, control the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06)Claim. If the Majority Shareholder elects not Complete should so elect to defend or if, after commencing or undertaking any exercise such defense, of any such Third Party Claim the Majority Shareholder fails to diligently prosecute or withdraws from such defenseright, the Buyer Indemnified Party indemnifying party shall have the right to undertake the defense. If the Majority Shareholder is participate in, but not controlling such defense, the Majority Shareholder may participate therein at its own expense. Unless, in the reasonable opinion of competent counsel to the Buyer Indemnified Party, a conflict of interest exists between the interests of the Buyer Indemnified Party and the Majority Shareholder that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by the Majority Shareholder (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects to assume the defense of any Third Party Claim, the Buyer Indemnified Party shall provide the Majority Shareholder and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with the Majority Shareholder in the defense or settlement thereof. The party controlling the defense of such Claim shall not consent to a settlement of, or the entry of any judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that the Majority Shareholder may consent to such a settlement or entry of judgment without the consent of the Buyer Indemnified Parties to the extent it (a) includes an express and unconditional release of the Buyer Indemnified Parties of all liability with respect to such Claim, except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, and the amount payable thereunder does not exceed the Cap or the limitations contemplated by Section 9.06(c), as applicable, (b) imposes no injunctive or other equitable relief against any Buyer Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Buyer Indemnified Parties refuse to consent to a bona fide offer of settlement that the Majority Shareholder wishes to accept and that (w) involves no payment of money by such Buyer Indemnified Parties (other than pursuant to the Threshold), (x) involves no material limitation on the future operation of the business of the Company and its Subsidiaries, (y) does not involve a finding or admission of wrongdoing and (z) releases such Buyer Indemnified Parties from all liability in connection with such Claim except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, the Majority Shareholder may reassign the defense of such claim to such Buyer Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by the Majority Shareholder, at the sole cost and expense of such Buyer Indemnified Parties. In such event, the obligation of the Majority Shareholder with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Buyer Indemnified Parties refused to accept or (ii) the aggregate Losses of the Buyer Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith).
(b) Any Seller Indemnified Party may make Claims for indemnification hereunder by giving prompt written notice thereof to Buyer, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any Third Party Claim, the Seller Indemnified Party shall also give Buyer written notice of such claim as to which such Seller Indemnified Party may request indemnification hereunder as is practicable and in any event within twenty (20) days of the time that such Seller Indemnified Party learns of such Claim; provided, however, that the failure to do so shall not relieve Buyer from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that such Third Party Claim does not seek to impose any Liability on the Seller Indemnified Party other than money damages, Buyer shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Seller Indemnified Partycontrol, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06)Claim. If Buyer elects not to defend or if, after commencing or undertaking any such defense, No settlement of any such Third Party Claim Buyer fails to diligently prosecute or withdraws from such defense, the Seller Indemnified Party shall have the right to undertake the defense. If Buyer is not controlling such defense, Buyer may participate therein at its own expense. Unless, in the reasonable opinion of competent counsel to the Seller Indemnified Party, a conflict of interest exists between the interests of the Seller Indemnified Party and Buyer that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by Buyer (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects to assume the defense of any Third Party Claim, the Seller Indemnified Party shall provide Buyer and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with Buyer in the defense or settlement thereof. The party controlling the defense of such Claim shall not consent to a settlement of, or the entry of any judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that Buyer may consent to such a settlement or entry of judgment made without the consent of the Seller Indemnified Parties to the extent it (a) includes an express and unconditional release of the Seller Indemnified Parties of all liability with respect to such Claimindemnifying party, and the amount payable thereunder does which consent may not exceed the limitations contemplated by Section 9.06(c), (b) imposes no injunctive or other equitable relief against any Seller Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Seller Indemnified Parties refuse to consent to a bona fide offer of settlement that Buyer wishes to accept and that (w) involves no payment of money by such Seller Indemnified Parties, (x) does not involve a finding or admission of wrongdoing and (y) releases such Seller Indemnified Parties from all liability in connection with such Claim, Buyer may reassign the defense of such claim to such Seller Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by Buyer, at the sole cost and expense of such Seller Indemnified Parties. In such event, the obligation of Buyer with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Seller Indemnified Parties refused to accept or (ii) the aggregate Losses of the Seller Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith)be unreasonably withheld.
Appears in 1 contract
Right to Defend, Etc. (a) Any Buyer Indemnified Party may make Claims for If the facts giving rise to any such indemnification hereunder pursuant to this Article 12 shall involve any actual claim or demand by giving prompt written notice thereof to the Majority Shareholder, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any third party (against a “Third Party Claim”), the Buyer Purchaser Indemnified Party or a Seller Indemnified Party, as the case may be (an "Indemnified Party") the party required to indemnify such Indemnified Party pursuant to Sections 12.1 or 12.2, as the case may be (the "Indemnifying Party") shall also give be entitled to notice of and entitled (without prejudice to the Majority Shareholder right of any Indemnified Party to participate at its expense through counsel of its own choosing) to defend or prosecute such claim at its expense and through counsel of its own choosing if it gives written notice of such claim as its intention to which such Buyer Indemnified Party may request indemnification hereunder or as to which do so no later than the Threshold may be applied as soon as is practicable and in any event within twenty (20) days of the time that such Buyer Indemnified Party learns 15th day following receipt of such Claimnotice of such claim; provided, however, that the failure to do so shall not relieve the Majority Shareholder from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that if: (i) such Third the defendants in any action shall include both a Indemnifying Party Claim does not seek to impose any Liability on the Buyer and an Indemnified Party other than money damages and the Indemnified Party shall have been advised by its counsel that the counsel selected by the Indemnifying Party has a conflict of interest because of the availability of different or additional defenses to the Indemnified Party; or (ii) the Indemnifying Party is not, in all reasonably foreseeable Losses of such respects, diligently and competently defending the claim, together with all other claims for indemnification hereunder, exceed the Threshold but do not exceed the Cap, the Majority Shareholder shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Buyer Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim the Majority Shareholder fails to diligently prosecute or withdraws from such defense, the Buyer Indemnified Party shall have the right to undertake the defense. If the Majority Shareholder is not controlling such defense, the Majority Shareholder may participate therein at its own expense. Unless, in the reasonable opinion of competent select separate counsel to the Buyer Indemnified Party, a conflict of interest exists between the interests of the Buyer Indemnified Party and the Majority Shareholder that requires representation by separate counsel, participate in which case the fees and expenses of one such separate counsel will be paid by the Majority Shareholder (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects to assume the defense of any Third Party Claim, the Buyer Indemnified Party shall provide the Majority Shareholder and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with the Majority Shareholder in the defense or settlement thereof. The party controlling the defense of such Claim action on its behalf, at the expense of the Indemnifying Party. The failure so to notify an Indemnifying Party shall not consent to a settlement of, or relieve the entry Indemnifying Party of any judgment arising from, liability which it may have to any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that the Majority Shareholder may consent to such a settlement or entry of judgment without the consent of the Buyer Indemnified Parties to the extent it (a) includes an express and unconditional release of the Buyer Indemnified Parties of all liability with respect to such Claim, except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, and the amount payable thereunder does not exceed the Cap or the limitations contemplated by Section 9.06(c), as applicable, (b) imposes no injunctive or other equitable relief against any Buyer Party. The Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Buyer Indemnified Parties refuse to consent to a bona fide offer of settlement that the Majority Shareholder wishes to accept and that (w) involves no payment of money by such Buyer Indemnified Parties (other than pursuant to the Threshold), (x) involves no material limitation on the future operation of the business of the Company and its Subsidiaries, (y) does not involve a finding or admission of wrongdoing and (z) releases such Buyer Indemnified Parties from all liability shall cooperate fully in connection with such Claim except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, the Majority Shareholder may reassign the defense of such claim and shall make available to such Buyer Indemnified Partiesthe Indemnifying Party pertinent information under its control relating thereto, who may then continue but shall be entitled to pursue the defense of such matterbe reimbursed, free of any participation by the Majority Shareholder, at the sole cost and expense of such Buyer Indemnified Parties. In such event, the obligation of the Majority Shareholder with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Buyer Indemnified Parties refused to accept or (ii) the aggregate Losses of the Buyer Indemnified Parties with respect to such claim (includingas provided in this Article 12, for the avoidance of doubt, any all out-of-pocket costs and expenses payable to third parties incurred by it in connection therewith).
(b) Any Seller Indemnified . Payment by an Indemnifying Party may make Claims for indemnification hereunder by giving prompt written notice thereof to Buyer, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any Third Party Claim, the Seller an Indemnified Party shall also give Buyer written notice of such be made within 10 days after demand, unless there is a claim or demand by a third party in which event payment shall be made within 10 days after final judgment, settlement or comprise, as to which such Seller Indemnified Party may request indemnification hereunder as is practicable and in any event within twenty (20) days of the time that such Seller Indemnified Party learns of such Claim; provided, however, that the failure to do so shall not relieve Buyer from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that such Third Party Claim does not seek to impose any Liability on the Seller Indemnified Party other than money damages, Buyer shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Seller Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim Buyer fails to diligently prosecute or withdraws from such defense, the Seller Indemnified Party shall have the right to undertake the defense. If Buyer is not controlling such defense, Buyer may participate therein at its own expense. Unless, in the reasonable opinion of competent counsel to the Seller Indemnified Party, a conflict of interest exists between the interests of the Seller Indemnified Party and Buyer that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by Buyer (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects to assume the defense of any Third Party Claim, the Seller Indemnified Party shall provide Buyer and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with Buyer in the defense or settlement thereof. The party controlling the defense of such Claim shall not consent to a settlement of, or the entry of any judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that Buyer may consent to such a settlement or entry of judgment without the consent of the Seller Indemnified Parties to the extent it (a) includes an express and unconditional release of the Seller Indemnified Parties of all liability with respect to such Claim, and the amount payable thereunder does not exceed the limitations contemplated by Section 9.06(c), (b) imposes no injunctive or other equitable relief against any Seller Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Seller Indemnified Parties refuse to consent to a bona fide offer of settlement that Buyer wishes to accept and that (w) involves no payment of money by such Seller Indemnified Parties, (x) does not involve a finding or admission of wrongdoing and (y) releases such Seller Indemnified Parties from all liability in connection with such Claim, Buyer may reassign the defense of such claim to such Seller Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by Buyer, at the sole cost and expense of such Seller Indemnified Parties. In such event, the obligation of Buyer with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Seller Indemnified Parties refused to accept or (ii) the aggregate Losses of the Seller Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith)be.
Appears in 1 contract
Samples: Asset Purchase Agreement (Physician Computer Network Inc /Nj)
Right to Defend, Etc. (a) Any Buyer Indemnified Party may make Claims for If the facts giving rise to any such indemnification hereunder pursuant to this Article 13 shall involve any actual claim or demand by giving prompt written notice thereof to the Majority Shareholder, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any third party (a “"Third Party Claim”), the Buyer ") against a Purchaser Indemnified Party or a Seller Indemnified Party, as the case may be (an "Indemnified Party") the party required to indemnify such Indemnified Party pursuant to Sections 13.1 or 13.2, as the case may be (the "Indemnifying Party") shall also give the Majority Shareholder written be entitled to notice of such claim claim. At such time as to which such Buyer Indemnified the remedy sought in the Third Party Claim is solely money damages or if Medical Manager otherwise permits, then Sellers, at their sole cost and expense, may request indemnification hereunder or as to which assume the Threshold may be applied as soon as is practicable and in any event within twenty (20) days defense of the time that such Buyer Indemnified Third Party learns of such Claim; provided, however, that . If Sellers assume the failure to do so shall not relieve the Majority Shareholder from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case defense of a Third Party Claim, provided that (i) such Third Party Claim does not seek then Sellers shall select counsel reasonably satisfactory to impose any Liability on the Buyer Indemnified Party other than money damages and (ii) the reasonably foreseeable Losses of such claim, together with all other claims for indemnification hereunder, exceed the Threshold but do not exceed the Cap, the Majority Shareholder shall have the right Medical Manager to direct, through counsel of its own choosing that is reasonably acceptable to the Buyer Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim the Majority Shareholder fails to diligently prosecute or withdraws from such defense, the Buyer Indemnified Party shall have the right to undertake conduct the defense. If the Majority Shareholder is not controlling such defense, the Majority Shareholder may participate therein at its own expense. Unless, in the reasonable opinion of competent counsel to the Buyer Indemnified Party, a conflict of interest exists between the interests of the Buyer Indemnified Party and the Majority Shareholder that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by the Majority Shareholder (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects to assume the defense of any Third Party Claim, the Buyer Indemnified Party shall provide the Majority Shareholder and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with the Majority Shareholder in the defense or settlement thereof. The party controlling the defense of such Claim Sellers shall not consent to a settlement of, or the entry of any judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that the Majority Shareholder may consent to such a settlement or entry of judgment without the consent of the Buyer Indemnified Parties to the extent it (a) includes an express and unconditional release of the Buyer Indemnified Parties of all liability with respect to such Third Party Claim, except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, and the amount payable thereunder does not exceed the Cap or the limitations contemplated by Section 9.06(c), as applicable, (b) imposes no injunctive or other equitable relief against any Buyer Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Buyer Indemnified Parties refuse to consent to a bona fide offer of settlement that the Majority Shareholder wishes to accept and that (w) involves no payment of money by such Buyer Indemnified Parties (other than pursuant to the Threshold), (x) involves no material limitation on the future operation of the business of the Company and its Subsidiaries, (y) does not involve a finding or admission of wrongdoing and (z) releases such Buyer Indemnified Parties from all liability in connection with such Claim except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, the Majority Shareholder may reassign the defense of such claim to such Buyer Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by the Majority Shareholder, at the sole cost and expense of such Buyer Indemnified Parties. In such event, the obligation of the Majority Shareholder with respect thereto shall not exceed the lesser of unless (i) the amount settlement or judgment is solely for money damages and Seller admits in writing its liability to hold Medical Manager and the Purchaser harmless from and against any losses, damages, expenses and liabilities arising out of the offer of such settlement that such Buyer Indemnified Parties refused to accept or judgment or (ii) the aggregate Losses of the Buyer Indemnified Parties Medical Manager reasonably consents thereto. Sellers shall provide Medical Manager with respect to such claim ten (including, for the avoidance of doubt, any costs and expenses incurred therewith).
(b10) Any Seller Indemnified Party may make Claims for indemnification hereunder by giving prompt days prior written notice thereof before it consents to Buyera settlement of, prior to or the end entry of the applicable survival period. If indemnification is sought for a Claim by or in respect of judgment arising from, any Third Party Claim. Medical Manager and the Purchaser shall be entitled to participate, the Seller Indemnified Party shall also give Buyer written notice of such claim as to which such Seller Indemnified Party may request indemnification hereunder as is practicable and in any event within twenty (20) days of the time that such Seller Indemnified Party learns of such Claim; provided, however, that the failure to do so shall not relieve Buyer from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that such Third Party Claim does not seek to impose any Liability on the Seller Indemnified Party other than money damages, Buyer shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Seller Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim Buyer fails to diligently prosecute or withdraws from such defense, the Seller Indemnified Party shall have the right to undertake the defense. If Buyer is not controlling such defense, Buyer may participate therein at its their own expense. Unless, in the reasonable opinion of competent counsel to the Seller Indemnified Party, a conflict of interest exists between the interests of the Seller Indemnified Party and Buyer that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by Buyer (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects to assume the defense of any Third Party Claim, the Seller Indemnified defense of which is assumed by Sellers with its own counsel. With respect to Third Party shall provide Buyer Claims in which, and its outside counsel with access for so long as, the remedy sought is not money damages and Medical Manager does not permit Sellers to their personnel relating assume the defense, Sellers shall, upon notice to any such claim during normal business hours and shall otherwise reasonably cooperate with Buyer Medical Manager within fifteen (15) days after Sellers receives notices of the Third Party Claim, be entitled to participate in the defense with his own counsel at its own expense. In such instance, or settlement thereof. The party controlling if Sellers does not assume or participate in the defense of such any Third Party Claim in accordance with the terms of this Section, Sellers shall not consent be bound by the results obtained by Medical Manager with respect to the Third Party Claim. Medical Manager shall provide Sellers with ten (10) days prior written notice before it consents to a settlement of, or the entry of any a judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that Buyer may consent to such a settlement or entry of judgment without the consent of the Seller Indemnified Parties to the extent it (a) includes an express and unconditional release of the Seller Indemnified Parties of all liability with respect to such Third Party Claim, and the amount payable thereunder does not exceed the limitations contemplated by Section 9.06(c), (b) imposes no injunctive or other equitable relief against any Seller Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Seller Indemnified Parties refuse to consent to a bona fide offer of settlement that Buyer wishes to accept and that (w) involves no payment of money by such Seller Indemnified Parties, (x) does not involve a finding or admission of wrongdoing and (y) releases such Seller Indemnified Parties from all liability in connection with such Claim, Buyer may reassign the defense of such claim to such Seller Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by Buyer, at the sole cost and expense of such Seller Indemnified Parties. In such event, the obligation of Buyer with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Seller Indemnified Parties refused to accept or (ii) the aggregate Losses of the Seller Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith).
Appears in 1 contract
Samples: Asset Purchase Agreement (Physician Computer Network Inc /Nj)
Right to Defend, Etc. (a) Any Buyer If the facts giving rise to any Claim shall involve any actual action, lawsuit, proceeding, investigation or other claim by any third-party against an Indemnified Party may make Claims for indemnification hereunder by giving prompt written notice thereof to the Majority Shareholder, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any third party (a “Third Third-Party Claim”), the Buyer indemnifying party shall be entitled to notice of the Third-Party Claim (provided that failure to notify the indemnifying party shall not relieve it of its obligations hereunder except to the extent that (and only to the extent that) such failure shall have caused the Losses for which the indemnifying party is obligated to be greater than such Losses would have been had the Indemnified Party given prompt notice hereunder) and, subject to Section 8.03(b) below, the indemnifying party shall be entitled to defend or prosecute such Third-Party Claim at its expense and through counsel of its own choosing if it advises the Indemnified Party in writing of its intention to do so within thirty (30) days after notice of such Third-Party Claim has been given to the indemnifying party (without prejudice to the right of any Indemnified Party to participate at its expense through counsel of its own choosing). Such Indemnified Party shall also give cooperate in the Majority Shareholder written notice defense and/or settlement of such claim as Third-Party Claim, but shall be entitled to which be reimbursed for all costs and expenses incurred by it in connection therewith. No settlement of any such Buyer Indemnified Third-Party may request indemnification hereunder or as to which the Threshold Claim may be applied as soon as is practicable and in any event within twenty (20) days made without the consent of the time that such Buyer Indemnified Party learns of such Claimindemnifying party, which consent may not be unreasonably withheld; provided, however, that if such indemnifying party has been offered the failure opportunity to defend such Third-Party Claim and has elected not to do so so, in that case settlement may be made without the consent of the indemnifying party.
(b) Notwithstanding Section 8.03(a) hereof, the indemnifying party shall not relieve the Majority Shareholder from any liability except be entitled to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature assume control of such claim defense and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that (i) such Third Party Claim does not seek to impose any Liability on the Buyer Indemnified Party other than money damages and (ii) the reasonably foreseeable Losses of such claim, together with all other claims for indemnification hereunder, exceed the Threshold but do not exceed the Cap, the Majority Shareholder shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Buyer Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim the Majority Shareholder fails to diligently prosecute or withdraws from such defense, the Buyer Indemnified Party shall have the right to undertake the defense. If the Majority Shareholder is not controlling such defense, the Majority Shareholder may participate therein at its own expense. Unless, in the reasonable opinion of competent counsel to the Buyer Indemnified Party, a conflict of interest exists between the interests of the Buyer Indemnified Party and the Majority Shareholder that requires representation by separate counsel, in which case pay the fees and expenses of one such separate counsel will be paid retained by the Majority Shareholder (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects to assume the defense of any Third Party Claim, the Buyer Indemnified Party shall provide the Majority Shareholder and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with the Majority Shareholder in the defense or settlement thereof. The party controlling the defense of such Claim shall not consent to a settlement of, or the entry of any judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that the Majority Shareholder may consent to such a settlement or entry of judgment without the consent of the Buyer Indemnified Parties to the extent it (a) includes an express and unconditional release of the Buyer Indemnified Parties of all liability with respect to such Claim, except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, and the amount payable thereunder does not exceed the Cap or the limitations contemplated by Section 9.06(c), as applicable, (b) imposes no injunctive or other equitable relief against any Buyer Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Buyer Indemnified Parties refuse to consent to a bona fide offer of settlement that the Majority Shareholder wishes to accept and that (w) involves no payment of money by such Buyer Indemnified Parties (other than pursuant to the Threshold), (x) involves no material limitation on the future operation of the business of the Company and its Subsidiaries, (y) does not involve a finding or admission of wrongdoing and (z) releases such Buyer Indemnified Parties from all liability in connection with such Claim except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, the Majority Shareholder may reassign the defense of such claim to such Buyer Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by the Majority Shareholder, at the sole cost and expense of such Buyer Indemnified Parties. In such event, the obligation of the Majority Shareholder with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Buyer Indemnified Parties refused claim for indemnification relates to accept or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the aggregate Losses of the Buyer Indemnified Parties Party reasonably believes an adverse determination with respect to such claim the Third-Party Claim would be detrimental to or injure the Indemnified Party’s reputation or future business prospects; (including, for iii) the avoidance of doubt, any costs and expenses incurred therewith).
Third-Party Claim seeks an injunction or equitable relief against the Indemnified Party; or (biv) Any Seller Indemnified Party may make Claims for indemnification hereunder by giving prompt written notice thereof to Buyer, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any Third Party Claim, the Seller Indemnified Party shall also give Buyer written notice of such claim as to which such Seller Indemnified Party may request indemnification hereunder as is practicable and in any event within twenty (20) days of the time that such Seller Indemnified Party learns of such Claim; provided, however, that the failure to do so shall not relieve Buyer from any liability except to the extent that it is materially prejudiced upon petition by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that such Third Party Claim does not seek to impose any Liability on the Seller Indemnified Party other than money damages, Buyer shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Seller Indemnified Party, the defense appropriate court rules that the indemnifying party failed or settlement of any such Third Party Claim (subject is failing to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim Buyer fails to diligently vigorously prosecute or withdraws from defend such defense, the Seller Indemnified Party shall have the right to undertake the defense. If Buyer is not controlling such defense, Buyer may participate therein at its own expense. Unless, in the reasonable opinion of competent counsel to the Seller Indemnified Party, a conflict of interest exists between the interests of the Seller Indemnified Party and Buyer that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by Buyer (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects to assume the defense of any Third Third-Party Claim, the Seller Indemnified Party shall provide Buyer and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with Buyer in the defense or settlement thereof. The party controlling the defense of such Claim shall not consent to a settlement of, or the entry of any judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that Buyer may consent to such a settlement or entry of judgment without the consent of the Seller Indemnified Parties to the extent it (a) includes an express and unconditional release of the Seller Indemnified Parties of all liability with respect to such Claim, and the amount payable thereunder does not exceed the limitations contemplated by Section 9.06(c), (b) imposes no injunctive or other equitable relief against any Seller Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Seller Indemnified Parties refuse to consent to a bona fide offer of settlement that Buyer wishes to accept and that (w) involves no payment of money by such Seller Indemnified Parties, (x) does not involve a finding or admission of wrongdoing and (y) releases such Seller Indemnified Parties from all liability in connection with such Claim, Buyer may reassign the defense of such claim to such Seller Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by Buyer, at the sole cost and expense of such Seller Indemnified Parties. In such event, the obligation of Buyer with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Seller Indemnified Parties refused to accept or (ii) the aggregate Losses of the Seller Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith).
Appears in 1 contract
Right to Defend, Etc. (a) Any Buyer Indemnified Party may make Claims for If the facts giving rise to any such indemnification hereunder shall involve any actual Claim or demand by giving prompt written notice thereof to the Majority Shareholder, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any third party (a “Third Party Claim”)against an Indemnified Party, the Buyer indemnifying party shall be entitled to notice of and entitled to defend or prosecute such Claim at its expense and through counsel of its own choosing if it advises the Indemnified Party in writing of its intention to do so within thirty (30) days after notice of such Claim has been given to the indemnifying party (without prejudice to the right of any Indemnified Party to participate at its expense through counsel of its own choosing). Such Indemnified Party shall also give cooperate in the Majority Shareholder written notice of such claim as to which such Buyer Indemnified Party may request indemnification hereunder or as to which the Threshold may be applied as soon as is practicable and in any event within twenty (20) days of the time that such Buyer Indemnified Party learns defense and/or settlement of such Claim, but shall be entitled to be reimbursed for all costs and expenses incurred by it in connection therewith. No settlement of any Claim may be made without the consent of the indemnifying party, which consent may not be unreasonably withheld; provided, however, that if such indemnifying party has been offered the failure opportunity to defend such Claim and has elected not to do so shall not relieve then settlement may be made without the Majority Shareholder from consent of the indemnifying party.
(b) Notwithstanding Section 10.03(a) hereof, if, in the reasonable opinion of the Buyer, any liability except to the extent that it is Claim involves an issue or matter which could have a materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that (i) such Third Party Claim does not seek to impose any Liability adverse effect on the Buyer Indemnified Party other than money damages business, operations, assets or prospects of the Buyer, then, and (ii) the reasonably foreseeable Losses of in such claim, together with all other claims for indemnification hereunder, exceed the Threshold but do not exceed the Capevent, the Majority Shareholder Buyer shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Buyer Indemnified Party, control the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06)Claim. If the Majority Shareholder elects not Buyer should so elect to defend or if, after commencing or undertaking any exercise such defense, of any such Third Party Claim the Majority Shareholder fails to diligently prosecute or withdraws from such defenseright, the Buyer Indemnified Party shall pay the legal expenses associated with such defense and the indemnifying party shall have the right to undertake the defense. If the Majority Shareholder is not controlling such defense, the Majority Shareholder may participate therein at its own expense. Unlesssole expense to participate in, in the reasonable opinion of competent counsel to the Buyer Indemnified Party, a conflict of interest exists between the interests of the Buyer Indemnified Party and the Majority Shareholder that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by the Majority Shareholder (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects to assume the defense of any Third Party Claim, the Buyer Indemnified Party shall provide the Majority Shareholder and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with the Majority Shareholder in the defense or settlement thereof. The party controlling the defense of such Claim shall but not consent to a settlement of, or the entry of any judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that the Majority Shareholder may consent to such a settlement or entry of judgment without the consent of the Buyer Indemnified Parties to the extent it (a) includes an express and unconditional release of the Buyer Indemnified Parties of all liability with respect to such Claim, except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, and the amount payable thereunder does not exceed the Cap or the limitations contemplated by Section 9.06(c), as applicable, (b) imposes no injunctive or other equitable relief against any Buyer Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Buyer Indemnified Parties refuse to consent to a bona fide offer of settlement that the Majority Shareholder wishes to accept and that (w) involves no payment of money by such Buyer Indemnified Parties (other than pursuant to the Threshold), (x) involves no material limitation on the future operation of the business of the Company and its Subsidiaries, (y) does not involve a finding or admission of wrongdoing and (z) releases such Buyer Indemnified Parties from all liability in connection with such Claim except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, the Majority Shareholder may reassign the defense of such claim to such Buyer Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by the Majority Shareholder, at the sole cost and expense of such Buyer Indemnified Parties. In such event, the obligation of the Majority Shareholder with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Buyer Indemnified Parties refused to accept or (ii) the aggregate Losses of the Buyer Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith).
(b) Any Seller Indemnified Party may make Claims for indemnification hereunder by giving prompt written notice thereof to Buyer, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any Third Party Claim, the Seller Indemnified Party shall also give Buyer written notice of such claim as to which such Seller Indemnified Party may request indemnification hereunder as is practicable and in any event within twenty (20) days of the time that such Seller Indemnified Party learns of such Claim; provided, however, that the failure to do so shall not relieve Buyer from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that such Third Party Claim does not seek to impose any Liability on the Seller Indemnified Party other than money damages, Buyer shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Seller Indemnified Partycon- trol, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06)Claim. If Buyer elects not to defend or if, after commencing or undertaking any such defense, No settlement of any such Third Party Claim Buyer fails to diligently prosecute or withdraws from such defense, the Seller Indemnified Party shall have the right to undertake the defense. If Buyer is not controlling such defense, Buyer may participate therein at its own expense. Unless, in the reasonable opinion of competent counsel to the Seller Indemnified Party, a conflict of interest exists between the interests of the Seller Indemnified Party and Buyer that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by Buyer (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects to assume the defense of any Third Party Claim, the Seller Indemnified Party shall provide Buyer and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with Buyer in the defense or settlement thereof. The party controlling the defense of such Claim shall not consent to a settlement of, or the entry of any judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that Buyer may consent to such a settlement or entry of judgment made without the consent of the Seller Indemnified Parties to the extent it (a) includes an express and unconditional release of the Seller Indemnified Parties of all liability with respect to such Claimindemnifying party, and the amount payable thereunder does which consent may not exceed the limitations contemplated by Section 9.06(c), (b) imposes no injunctive or other equitable relief against any Seller Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Seller Indemnified Parties refuse to consent to a bona fide offer of settlement that Buyer wishes to accept and that (w) involves no payment of money by such Seller Indemnified Parties, (x) does not involve a finding or admission of wrongdoing and (y) releases such Seller Indemnified Parties from all liability in connection with such Claim, Buyer may reassign the defense of such claim to such Seller Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by Buyer, at the sole cost and expense of such Seller Indemnified Parties. In such event, the obligation of Buyer with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Seller Indemnified Parties refused to accept or (ii) the aggregate Losses of the Seller Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith)be unreasonably withheld.
Appears in 1 contract
Samples: Asset Purchase Agreement (Universal Power Group Inc.)
Right to Defend, Etc. (a) Any Buyer Indemnified Party may make Claims for If the facts giving rise to any such indemnification hereunder shall involve any actual Claim or demand by giving prompt written notice thereof to the Majority Shareholder, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any third party against a Company Indemnified Party or Parent Indemnified Party (a in each case generally referred to as an “Third Party ClaimIndemnified Party”), the Buyer Indemnifying Party shall be entitled to notice of and entitled (without prejudice) to the right of any Indemnified Party shall also give the Majority Shareholder to participate at its expense through counsel of its own choosing to defend or prosecute such claim at its expense and through counsel of its own choosing if it gives written notice of such claim as its intention to do so no later than the time by which such Buyer the interests of the Indemnified Party may request indemnification hereunder or would be materially prejudiced as a result of its failure to which the Threshold may be applied as soon as is practicable and in any event within twenty (20) days of the time that has received such Buyer Indemnified Party learns of such Claimnotice; provided, however, that if the failure to do so defendants in any action shall not relieve include both an Indemnifying Party and an Indemnified Party and the Majority Shareholder from any liability except Indemnified Party shall have been advised by its counsel that the counsel selected by the Indemnifying Party has a conflict of interest because of the availability of different or additional defenses to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that (i) such Third Party Claim does not seek to impose any Liability on the Buyer Indemnified Party other than money damages and (ii) the reasonably foreseeable Losses of such claim, together with all other claims for indemnification hereunder, exceed the Threshold but do not exceed the Cap, the Majority Shareholder shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Buyer Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim the Majority Shareholder fails to diligently prosecute or withdraws from such defense, the Buyer Indemnified Party shall have the right to undertake the defense. If the Majority Shareholder is not controlling such defense, the Majority Shareholder may participate therein at its own expense. Unless, in the reasonable opinion of competent select separate counsel to the Buyer Indemnified Party, a conflict of interest exists between the interests of the Buyer Indemnified Party and the Majority Shareholder that requires representation by separate counsel, participate in which case the fees and expenses of one such separate counsel will be paid by the Majority Shareholder (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects to assume the defense of any Third Party Claim, the Buyer Indemnified Party shall provide the Majority Shareholder and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with the Majority Shareholder in the defense or settlement thereof. The party controlling the defense of such Claim shall not consent to a settlement ofaction on its behalf, or at the entry of any judgment arising from, any such Claim without the prior written consent expense of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed)Indemnifying Party; provided, however, that the Majority Shareholder may consent to such a settlement or entry of judgment without the consent of the Buyer Indemnified Parties to the extent it (a) includes an express and unconditional release of the Buyer Indemnified Parties of all liability with respect to such Claim, except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, and the amount payable thereunder does not exceed the Cap or the limitations contemplated by Section 9.06(c), as applicable, (b) imposes no injunctive or other equitable relief against any Buyer Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if there is more than one Indemnified Party, the Buyer Indemnified Parties refuse to consent to a bona fide offer of settlement that the Majority Shareholder wishes to accept and that (w) involves no payment of money by such Buyer Indemnified Parties (other than pursuant to the Threshold), (x) involves no material limitation on the future operation of the business of the Company and its Subsidiaries, (y) does not involve a finding or admission of wrongdoing and (z) releases such Buyer Indemnified Parties from all liability in connection with such Claim except for payments that would Indemnifying Party shall only be required to pay the expense of one additional counsel other than its own. Notwithstanding the foregoing, (i) the failure to so notify the Indemnifying Party within such time as would materially prejudice the Indemnifying Party's right to defend or prosecute such claim shall relieve such Indemnifying Party of any liability which it may has to any Indemnified Party; and (ii) the Indemnifying Party shall not be paid required to pay or reimburse the Indemnified Party for any costs or expenses associated with any counsel hired by the Buyer Indemnified Parties representing Party prior to receipt of such notice by the Threshold, the Majority Shareholder may reassign Indemnifying Party. The Indemnified Party shall cooperate fully in the defense of such claim to such Buyer Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by the Majority Shareholder, at the sole cost and expense of such Buyer Indemnified Parties. In such event, the obligation of the Majority Shareholder with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Buyer Indemnified Parties refused to accept or (ii) the aggregate Losses of the Buyer Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith).
(b) Any Seller Indemnified Party may make Claims for indemnification hereunder by giving prompt written notice thereof to Buyer, prior available to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any Third Indemnifying Party Claimpertinent information under its control relating thereto, the Seller Indemnified Party but shall also give Buyer written notice of such claim be entitled to be reimbursed, as to which such Seller Indemnified Party may request indemnification hereunder as is practicable and in any event within twenty (20) days of the time that such Seller Indemnified Party learns of such Claim; provided, however, that the failure to do so shall not relieve Buyer from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that such Third Party Claim does not seek to impose any Liability on the Seller Indemnified Party other than money damages, Buyer shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Seller Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those for all out-of-pocket costs and expenses payable to third parties incurred by it in Section 9.06)connection therewith. If Buyer elects not to defend or if, after commencing or undertaking any such defense, of any such Third Indemnifying Party Claim Buyer fails to diligently prosecute or withdraws from such defense, the Seller Indemnified Party shall have the right to undertake the defense. If Buyer is not controlling such defense, Buyer may participate therein at its own expense. Unless, in the reasonable opinion of competent counsel to the Seller Indemnified Party, a conflict of interest exists between the interests of the Seller Indemnified Party and Buyer that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by Buyer (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects to assume assumes the defense of any Third Party Claimsuch claim, the Seller Indemnifying Party will hold the Indemnified Party shall provide Buyer harmless from and its outside counsel with access to their personnel relating to against any such claim during normal business hours and shall otherwise reasonably cooperate with Buyer in the defense or settlement thereof. The party controlling the defense of such Claim shall not consent to a settlement of, or the entry all damages arising out of any judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that Buyer may consent to such a settlement or entry of judgment without the consent of the Seller Indemnified Parties to the extent it (a) includes an express and unconditional release of the Seller Indemnified Parties of all liability with respect to such Claim, and the amount payable thereunder does not exceed the limitations contemplated by Section 9.06(c), (b) imposes no injunctive or other equitable relief against any Seller Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Seller Indemnified Parties refuse to consent to a bona fide offer of settlement that Buyer wishes to accept and that (w) involves no payment of money approved by such Seller Indemnified Parties, (x) does not involve a finding Indemnifying Party or admission of wrongdoing and (y) releases such Seller Indemnified Parties from all liability any judgment in connection with such Claimclaim or litigation. Payment by an Indemnifying Party to an Indemnified Party shall be made within ten days after demand, Buyer unless there is a claim or demand by a third party in which event payment shall be made within ten days after final judgment, settlement or compromise, as the case may reassign the defense of such claim to such Seller Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by Buyer, at the sole cost and expense of such Seller Indemnified Parties. In such event, the obligation of Buyer with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Seller Indemnified Parties refused to accept or (ii) the aggregate Losses of the Seller Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith)be.
Appears in 1 contract
Right to Defend, Etc. (a) Any Buyer Indemnified Party may make Claims for If the facts giving rise to any such indemnification hereunder pursuant to this Article VII shall involve any actual claim or demand by giving prompt written notice thereof to the Majority Shareholder, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any third party (against a “Third Party Claim”), the Buyer Purchaser Indemnified Party or a Company Indemnified Party, as the case may be (an "Indemnified Party") the party required to indemnify such Indemnified Party pursuant to Sections 7.01 or 7.02, as the case may be (the "Indemnifying Party") shall also give be entitled to notice of and entitled (without prejudice to the Majority Shareholder right of any Indemnified Party to participate at its own expense through counsel of its own choosing) to defend or prosecute such claim at its expense and through counsel of its own choosing if it gives written notice of such claim as its intention to which such Buyer Indemnified Party may request indemnification hereunder or as to which do so no later than the Threshold may be applied as soon as is practicable and in any event within twenty (20) days of the time that such Buyer Indemnified Party learns 15th day following receipt of such Claimnotice; provided, however, that if the failure to do so defendants in any action shall not relieve include both a Indemnify ing Party and an Indemnified Party and the Majority Shareholder from any liability except Indemnified Party shall have been advised by its counsel that the counsel selected by the Indemnifying Party has a conflict of interest because of the availability of different or additional defenses to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that (i) such Third Party Claim does not seek to impose any Liability on the Buyer Indemnified Party other than money damages and (ii) the reasonably foreseeable Losses of such claim, together with all other claims for indemnification hereunder, exceed the Threshold but do not exceed the Cap, the Majority Shareholder shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Buyer Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim the Majority Shareholder fails to diligently prosecute or withdraws from such defense, the Buyer Indemnified Party shall have the right to undertake the defense. If the Majority Shareholder is not controlling such defense, the Majority Shareholder may participate therein at its own expense. Unless, in the reasonable opinion of competent select separate counsel to the Buyer Indemnified Party, a conflict of interest exists between the interests of the Buyer Indemnified Party and the Majority Shareholder that requires representation by separate counsel, participate in which case the fees and expenses of one such separate counsel will be paid by the Majority Shareholder (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects to assume the defense of any Third Party Claim, the Buyer Indemnified Party shall provide the Majority Shareholder and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with the Majority Shareholder in the defense or settlement thereof. The party controlling the defense of such Claim action on its behalf, at the expense of the Indemnifying Party. The failure so to notify an Indemnifying Party shall not consent to a settlement of, or the entry relieve it of any judgment arising from, liability which it may have to any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that the Majority Shareholder may consent to such a settlement or entry of judgment without the consent of the Buyer Indemnified Parties Party except to the extent it (a) includes an express and unconditional release to which such liability may have been mitigated as a result of the Buyer Indemnified Parties timely receipt of all liability with respect to such Claim, except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, and the amount payable thereunder does not exceed the Cap or the limitations contemplated by Section 9.06(c), as applicable, (b) imposes no injunctive or other equitable relief against any Buyer notice. The Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Buyer Indemnified Parties refuse to consent to a bona fide offer of settlement that the Majority Shareholder wishes to accept and that (w) involves no payment of money by such Buyer Indemnified Parties (other than pursuant to the Threshold), (x) involves no material limitation on the future operation of the business of the Company and its Subsidiaries, (y) does not involve a finding or admission of wrongdoing and (z) releases such Buyer Indemnified Parties from all liability shall cooperate fully in connection with such Claim except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, the Majority Shareholder may reassign the defense of such claim and shall make available to such Buyer Indemnified Partiesthe Indemnifying Party pertinent information under its control relating thereto, who may then continue but shall be entitled to pursue the defense of such matterbe reimbursed, free of any participation by the Majority Shareholder, at the sole cost and expense of such Buyer Indemnified Parties. In such event, the obligation of the Majority Shareholder with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Buyer Indemnified Parties refused to accept or (ii) the aggregate Losses of the Buyer Indemnified Parties with respect to such claim (includingas provided in this Article VII, for the avoidance of doubt, any all out-of-pocket costs and expenses payable to third parties incurred by it in connection therewith).
(b) Any Seller Indemnified Party may make Claims for indemnification hereunder by giving prompt written notice thereof to Buyer, prior to the end including, without limitation, reasonable fees and disbursements of the applicable survival periodcounsel. If indemnification is sought for a Claim by or in respect of any Third Indemnifying Party Claim, the Seller Indemnified Party shall also give Buyer written notice of such claim as to which such Seller Indemnified Party may request indemnification hereunder as is practicable and in any event within twenty (20) days of the time that such Seller Indemnified Party learns of such Claim; provided, however, that the failure to do so shall not relieve Buyer from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that such Third Party Claim does not seek to impose any Liability on the Seller Indemnified Party other than money damages, Buyer shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Seller Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim Buyer fails to diligently prosecute or withdraws from such defense, the Seller Indemnified Party shall have the right to undertake the defense. If Buyer is not controlling such defense, Buyer may participate therein at its own expense. Unless, in the reasonable opinion of competent counsel to the Seller Indemnified Party, a conflict of interest exists between the interests of the Seller Indemnified Party and Buyer that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by Buyer (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects to assume assumes the defense of any Third Party Claimsuch claims, the Seller Indemnifying Party will hold the Indemnified Party shall provide Buyer harmless from and its outside counsel with access to their personnel relating to against any such claim during normal business hours and shall otherwise reasonably cooperate with Buyer in the defense or settlement thereof. The party controlling the defense of such Claim shall not consent to a settlement of, or the entry all damages arising out of any judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that Buyer may consent to such a settlement or entry of judgment without the consent of the Seller Indemnified Parties to the extent it (a) includes an express and unconditional release of the Seller Indemnified Parties of all liability with respect to such Claim, and the amount payable thereunder does not exceed the limitations contemplated by Section 9.06(c), (b) imposes no injunctive or other equitable relief against any Seller Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Seller Indemnified Parties refuse to consent to a bona fide offer of settlement that Buyer wishes to accept and that (w) involves no payment of money approved by such Seller Indemnified Parties, (x) does not involve a finding Indemnifying Party or admission of wrongdoing and (y) releases such Seller Indemnified Parties from all liability any judgment in connection with such Claimclaim or litigation. Payment by an Indemnifying Party to an Indemnified Party shall be made within ten (10) days after demand, Buyer unless there is a claim or demand by a third party in which event payment shall be made within ten (10) days after final judgment, settlement or comprise, as the case may reassign the defense of such claim to such Seller Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by Buyer, at the sole cost and expense of such Seller Indemnified Parties. In such event, the obligation of Buyer with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Seller Indemnified Parties refused to accept or (ii) the aggregate Losses of the Seller Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith)be.
Appears in 1 contract
Right to Defend, Etc. (a) Any Buyer Indemnified Party may make Claims for If the facts giving rise to any such indemnification hereunder pursuant to this Article 8 shall involve any actual claim or demand by giving prompt written notice thereof to the Majority Shareholder, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any third party (against a “Third Party Claim”), the Buyer PCN Indemnified Party or a Seller Indemnified Party, as the case may be (an "Indemnified Party") the party required to indemnify such Indemnified Party pursuant to Sections 8.1 or 8.2, as the case may be (the "Indemnifying Party") shall also give the Majority Shareholder be entitled to written notice of and entitled (without prejudice to the right of any Indemnified Party to participate at its own expense through counsel of its own choosing) to defend or prosecute such claim as at its expense and through counsel of its own choosing if it gives written notice of its intention to which such Buyer Indemnified Party may request indemnification hereunder or as to which do so no later than the Threshold may be applied as soon as is practicable and in any event within twenty (20) days of the time that such Buyer Indemnified Party learns 15th day following receipt of such Claimwritten notice; provided, however, that if the failure to do so defendants in any action shall not relieve include both a Indemnifying Party and an Indemnified Party and the Majority Shareholder from any liability except Indemnified Party shall have been advised by its counsel that the counsel selected by the Indemnifying Party has a conflict of interest because of the availability of different or additional defenses to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that (i) such Third Party Claim does not seek to impose any Liability on the Buyer Indemnified Party other than money damages and (ii) the reasonably foreseeable Losses of such claim, together with all other claims for indemnification hereunder, exceed the Threshold but do not exceed the Cap, the Majority Shareholder shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Buyer Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim the Majority Shareholder fails to diligently prosecute or withdraws from such defense, the Buyer Indemnified Party shall have the right to undertake select separate counsel (the defense. If the Majority Shareholder is not controlling such defense, the Majority Shareholder may participate therein at its own expense. Unless, in the reasonable opinion fees of competent which counsel shall be reasonably satisfactory to the Buyer Indemnified Indemnifying Party, a conflict of interest exists between the interests of the Buyer Indemnified Party and the Majority Shareholder that requires representation by separate counsel, ) to partici- pate in which case the fees and expenses of one such separate counsel will be paid by the Majority Shareholder (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects to assume the defense of any Third Party Claim, the Buyer Indemnified Party shall provide the Majority Shareholder and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with the Majority Shareholder in the defense or settlement thereof. The party controlling the defense of such Claim action on its behalf, at thx xxpense of the Indemnifying Party. The failure so to notify an Indemnifying Party shall not consent to a settlement of, or the entry relieve it of any judgment arising from, liability which it may have to any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that the Majority Shareholder may consent to such a settlement or entry of judgment without the consent of the Buyer Indemnified Parties Party except to the extent it (a) includes an express and unconditional release to which such liability may have been mitigated as a result of the Buyer Indemnified Parties timely receipt of all liability with respect to such Claim, except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, and the amount payable thereunder does not exceed the Cap or the limitations contemplated by Section 9.06(c), as applicable, (b) imposes no injunctive or other equitable relief against any Buyer notice. The Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Buyer Indemnified Parties refuse to consent to a bona fide offer of settlement that the Majority Shareholder wishes to accept and that (w) involves no payment of money by such Buyer Indemnified Parties (other than pursuant to the Threshold), (x) involves no material limitation on the future operation of the business of the Company and its Subsidiaries, (y) does not involve a finding or admission of wrongdoing and (z) releases such Buyer Indemnified Parties from all liability shall cooperate fully in connection with such Claim except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, the Majority Shareholder may reassign the defense of such claim and shall make available to such Buyer Indemnified Partiesthe Indemnifying Party pertinent information under its control relating thereto, who may then continue but shall be entitled to pursue the defense of such matterbe reimbursed, free of any participation by the Majority Shareholder, at the sole cost and expense of such Buyer Indemnified Parties. In such event, the obligation of the Majority Shareholder with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Buyer Indemnified Parties refused to accept or (ii) the aggregate Losses of the Buyer Indemnified Parties with respect to such claim (includingas provided in this Article 8, for the avoidance of doubt, any all out-of-pocket costs and expenses payable to third parties incurred by it in connection therewith).
(b) Any Seller Indemnified Party may make Claims for indemnification hereunder by giving prompt written notice thereof to Buyer, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any Third Party Claimincluding, the Seller Indemnified Party shall also give Buyer written notice of such claim as to which such Seller Indemnified Party may request indemnification hereunder as is practicable and in any event within twenty (20) days of the time that such Seller Indemnified Party learns of such Claim; providedwithout limitation, however, that the failure to do so shall not relieve Buyer from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that such Third Party Claim does not seek to impose any Liability on the Seller Indemnified Party other than money damages, Buyer shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Seller Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim Buyer fails to diligently prosecute or withdraws from such defense, the Seller Indemnified Party shall have the right to undertake the defense. If Buyer is not controlling such defense, Buyer may participate therein at its own expense. Unless, in the reasonable opinion of competent counsel to the Seller Indemnified Party, a conflict of interest exists between the interests of the Seller Indemnified Party and Buyer that requires representation by separate counsel, in which case the fees and expenses disbursements of one such separate counsel will be paid by Buyer (subject counsel. Subject to the limitations set forth in this Article IXSection 8.3(b), including those in Section 9.06). If Buyer elects to assume if any Indemnifying Party assumes the defense of any Third Party Claimsuch claims, the Seller Indemnifying Party will hold the Indemnified Party shall provide Buyer harmless from and its outside counsel with access to their personnel relating to against any such claim during normal business hours and shall otherwise reasonably cooperate with Buyer in the defense or settlement thereof. The party controlling the defense of such Claim shall not consent to a settlement of, or the entry all damages arising out of any judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that Buyer may consent to such a settlement or entry of judgment without the consent of the Seller Indemnified Parties to the extent it (a) includes an express and unconditional release of the Seller Indemnified Parties of all liability with respect to such Claim, and the amount payable thereunder does not exceed the limitations contemplated by Section 9.06(c), (b) imposes no injunctive or other equitable relief against any Seller Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Seller Indemnified Parties refuse to consent to a bona fide offer of settlement that Buyer wishes to accept and that (w) involves no payment of money approved by such Seller Indemnified Parties, (x) does not involve a finding Indemnifying Party or admission of wrongdoing and (y) releases such Seller Indemnified Parties from all liability any judgment in connection with such Claimclaim or litigation. Payment by an Indemnifying Party to an Indemnified Party shall be made within 10 days after demand, Buyer unless there is a claim or demand by a third party in which event payment shall be made within 10 days after final judgment, settlement or comprise, as the case may reassign the defense of such claim to such Seller Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by Buyer, at the sole cost and expense of such Seller Indemnified Parties. In such event, the obligation of Buyer with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Seller Indemnified Parties refused to accept or (ii) the aggregate Losses of the Seller Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith)be.
Appears in 1 contract
Samples: Merger Agreement (Physician Computer Network Inc /Nj)
Right to Defend, Etc. If the facts giving rise to any indemnification under this Section 10 shall involve any claim or demand by any person against any of the indemnified parties (a) Any Buyer an "Indemnified Party may make Claims for indemnification hereunder by giving prompt written Claim"), the indemnifying party shall be entitled to notice thereof of such Indemnified Claim. If the indemnified party shall fail to provide the Majority Shareholder, indemnifying party with notice of such Indemnified Claim prior to the end time by which the interests of the applicable survival period. If indemnification is sought for indemnifying party would be materially prejudiced as a Claim by or in respect result of its failure to have received such notice, the amount of any third indemnification to be paid to such indemnified party (with respect to such Indemnified Claim shall be reduced by the amount of any loss actually sustained by the indemnifying party as a “Third Party Claim”), the Buyer Indemnified Party shall also give the Majority Shareholder written notice result of such claim as prejudice. The indemnifying party shall be entitled (without prejudice to which such Buyer Indemnified Party may request indemnification hereunder or as to which the Threshold may be applied as soon as is practicable and in any event within twenty (20) days right of the time that such Buyer Indemnified Party learns of such Claim; provided, however, that the failure indemnified party to do so shall not relieve the Majority Shareholder from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that (i) such Third Party Claim does not seek to impose any Liability on the Buyer Indemnified Party other than money damages and (ii) the reasonably foreseeable Losses of such claim, together with all other claims for indemnification hereunder, exceed the Threshold but do not exceed the Cap, the Majority Shareholder shall have the right to direct, participate at its own expense through counsel of its own choosing that is reasonably acceptable to the Buyer Indemnified Party, in the defense or settlement prosecution of any such Third Party Claim (subject Indemnified Claim; PROVIDED that such participation shall not affect the right of the indemnifying party to control such defense or prosecution on behalf of the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects not indemnified party) to defend or ifprosecute such Indemnified Claim at its or their expense and through counsel reasonably satisfactory to the indemnified party. At any time following written notice from the indemnified party, after commencing the indemnifying party may assume the defense or prosecution of such Indemnified Claim by providing a written undertaking of their agreement to assume the defense or prosecution of such Indemnified Claim at their sole cost and expense in accordance with this Agreement; PROVIDED, HOWEVER, that any indemnifying party may defend or prosecute such Indemnified Claim with reputable attorneys of its own choosing until it shall have received the foregoing notice from the indemnifying party; PROVIDED, FURTHER, that if the defendants in any action shall include the indemnifying party and the indemnified party, and any such defense, indemnified party shall have reasonably concluded that counsel selected by the indemnifying party has a conflict of interest which under the Rules of Professional Conduct of the California Bar Association would prohibit the representation because of the availability of different or additional defenses to any such Third Party Claim the Majority Shareholder fails to diligently prosecute or withdraws from indemnified party, such defense, the Buyer Indemnified Party indemnified party shall have the right to undertake select separate counsel reasonably acceptable to the defense. If indemnifying party to participate in the Majority Shareholder is not controlling defense of such defenseIndemnified Claim on its behalf, at the Majority Shareholder may participate therein at its own expense. Unlessexpense of the indemnifying party, 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 in the reasonable opinion of competent counsel to the Buyer Indemnified Party, a conflict of interest exists between the interests same jurisdiction arising out of the Buyer Indemnified Party and the Majority Shareholder that requires representation by separate counselsame general allegations or circumstances, in which case be liable for the fees and expenses of more than one separate firm of attorneys at any time for such separate counsel will be paid by the Majority Shareholder (subject to the limitations set forth indemnified party. The indemnified party shall cooperate fully in this Article IX, including those in Section 9.06). If the Majority Shareholder elects to assume the defense of any Third Party Claim, the Buyer Indemnified Party shall provide the Majority Shareholder and its outside counsel with access to their personnel relating to any such claim during normal business hours Claim hereunder and shall otherwise reasonably cooperate with the Majority Shareholder in the defense or settlement thereof. The party controlling the defense of such Claim shall not consent make available to a settlement of, or the entry of any judgment arising from, any such Claim without the prior written consent of the party not controlling assuming such defense (which consent pertinent information under such indemnified party's control relating thereto, but shall not be unreasonably withheld, conditioned or delayed); provided, however, that the Majority Shareholder may consent to such a settlement or entry of judgment without the consent of the Buyer Indemnified Parties to the extent it (a) includes an express and unconditional release of the Buyer Indemnified Parties of all liability with respect to such Claim, except for payments that would be required entitled to be paid by the Buyer Indemnified Parties representing the Threshold, and the amount payable thereunder does not exceed the Cap or the limitations contemplated by Section 9.06(c), as applicable, (b) imposes no injunctive or other equitable relief against any Buyer Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Buyer Indemnified Parties refuse to consent to a bona fide offer of settlement that the Majority Shareholder wishes to accept and that (w) involves no payment of money by such Buyer Indemnified Parties (other than pursuant to the Threshold), (x) involves no material limitation on the future operation of the business of the Company and its Subsidiaries, (y) does not involve a finding or admission of wrongdoing and (z) releases such Buyer Indemnified Parties from reimbursed for all liability in connection with such Claim except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, the Majority Shareholder may reassign the defense of such claim to such Buyer Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by the Majority Shareholder, at the sole cost and expense of such Buyer Indemnified Parties. In such event, the obligation of the Majority Shareholder with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Buyer Indemnified Parties refused to accept or (ii) the aggregate Losses of the Buyer Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith).
(b) Any Seller Indemnified Party may make Claims for indemnification hereunder by giving prompt written notice thereof to Buyer, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any Third Party Claim, the Seller Indemnified Party shall also give Buyer written notice of such claim as to which such Seller Indemnified Party may request indemnification hereunder as is practicable and in any event within twenty (20) days of the time that such Seller Indemnified Party learns of such Claim; provided, however, that the failure to do so shall not relieve Buyer from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that such Third Party Claim does not seek to impose any Liability on the Seller Indemnified Party other than money damages, Buyer shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Seller Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim Buyer fails to diligently prosecute or withdraws from such defense, the Seller Indemnified Party shall have the right to undertake the defense. If Buyer is not controlling such defense, Buyer may participate therein at its own expense. Unless, in the reasonable opinion of competent counsel to the Seller Indemnified Party, a conflict of interest exists between the interests of the Seller Indemnified Party and Buyer that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by Buyer (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects to assume the defense of any Third Party Claim, the Seller Indemnified Party shall provide Buyer and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with Buyer in the defense or settlement thereof. The indemnified party controlling the defense of such Claim shall not consent to a settlement of, or the entry of any judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that Buyer may consent to such a settlement or entry of judgment without the consent of the Seller Indemnified Parties to the extent it (a) includes an express and unconditional release of the Seller Indemnified Parties of all liability with respect to such Claim, and the amount payable thereunder does not exceed the limitations contemplated by Section 9.06(c), (b) imposes no injunctive or other equitable relief against any Seller Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Seller Indemnified Parties refuse to consent to a bona fide offer of settlement that Buyer wishes to accept and that (w) involves no payment of money by such Seller Indemnified Parties, (x) does not involve a finding or admission of wrongdoing and (y) releases such Seller Indemnified Parties from all liability in connection with such Claim, Buyer may reassign the defense of such claim to such Seller Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by Buyer, at the sole cost and expense of such Seller Indemnified Parties. In such event, the obligation of Buyer with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Seller Indemnified Parties refused to accept or (ii) the aggregate Losses of the Seller Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Premiere Radio Networks Inc)
Right to Defend, Etc. (a) Any Buyer Indemnified Party may make Claims for If the facts giving rise to any indemnification hereunder under Section 10 or 11 hereof shall involve an actual claim or demand by giving prompt written notice thereof to the Majority Shareholder, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any third party against a ARI Indemnified Party or an ACF Indemnified Party (a the “Third Party ClaimIndemnified Party”), the Buyer party which may be liable for indemnification (the “Indemnifying Party”) shall be entitled to notice of and entitled (without prejudice to the right of any Indemnified Party shall also give the Majority Shareholder to participate at its expense through counsel of its own choosing) to defend or prosecute such claim at its expense and through counsel of its own choosing if it gives written notice of such claim as its intention to do so no later than the time by which such Buyer the interests of the Indemnified Party may request indemnification hereunder or would be materially prejudiced as a result of its failure to which the Threshold may be applied as soon as is practicable and in any event within twenty (20) days of the time that have received such Buyer Indemnified Party learns of such Claimnotice; provided, however, that if the failure to do so defendants in any action shall not relieve include both a Indemnifying Party and an Indemnified Party and the Majority Shareholder from any liability except Indemnified Party shall have been advised by its counsel that the counsel selected by the Indemnifying Party has a conflict of interest because of the availability of different or additional defenses to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that (i) such Third Party Claim does not seek to impose any Liability on the Buyer Indemnified Party other than money damages and (ii) the reasonably foreseeable Losses of such claim, together with all other claims for indemnification hereunder, exceed the Threshold but do not exceed the Cap, the Majority Shareholder shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Buyer Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim the Majority Shareholder fails to diligently prosecute or withdraws from such defense, the Buyer Indemnified Party shall have the right to undertake the defense. If the Majority Shareholder is not controlling such defense, the Majority Shareholder may participate therein at its own expense. Unless, in the reasonable opinion of competent select separate counsel to the Buyer Indemnified Party, a conflict of interest exists between the interests of the Buyer Indemnified Party and the Majority Shareholder that requires representation by separate counsel, participate in which case the fees and expenses of one such separate counsel will be paid by the Majority Shareholder (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects to assume the defense of any Third Party Claim, the Buyer Indemnified Party shall provide the Majority Shareholder and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with the Majority Shareholder in the defense or settlement thereof. The party controlling the defense of such Claim action on its behalf, at the expense of the Indemnifying Party. The failure so to notify the Indemnifying Party shall not consent to a settlement of, or the entry relieve them of any judgment arising from, liability which they may have to any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that the Majority Shareholder may consent to such a settlement or entry of judgment without the consent of the Buyer Indemnified Parties to the extent it (a) includes an express and unconditional release of the Buyer Indemnified Parties of all liability with respect to such Claim, except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, and the amount payable thereunder does not exceed the Cap or the limitations contemplated by Section 9.06(c), as applicable, (b) imposes no injunctive or other equitable relief against any Buyer Party. The Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Buyer Indemnified Parties refuse to consent to a bona fide offer of settlement that the Majority Shareholder wishes to accept and that (w) involves no payment of money by such Buyer Indemnified Parties (other than pursuant to the Threshold), (x) involves no material limitation on the future operation of the business of the Company and its Subsidiaries, (y) does not involve a finding or admission of wrongdoing and (z) releases such Buyer Indemnified Parties from all liability shall cooperate fully in connection with such Claim except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, the Majority Shareholder may reassign the defense of such claim and shall make available to such Buyer Indemnified Partiesthe Indemnifying Party pertinent information under its control relating thereto, who may then continue but shall be entitled to pursue the defense of such matterbe reimbursed, free of any participation by the Majority Shareholder, at the sole cost and expense of such Buyer Indemnified Parties. In such event, the obligation of the Majority Shareholder with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Buyer Indemnified Parties refused to accept or (ii) the aggregate Losses of the Buyer Indemnified Parties with respect to such claim (includingas provided in this Article 10, for the avoidance of doubt, any all out-of-pocket costs and expenses payable to third parties incurred by it in connection therewith).
(b) Any Seller Indemnified Party may make Claims for indemnification hereunder by giving prompt written notice thereof to Buyer, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any Third Indemnifying Party Claim, the Seller Indemnified Party shall also give Buyer written notice of such claim as to which such Seller Indemnified Party may request indemnification hereunder as is practicable and in any event within twenty (20) days of the time that such Seller Indemnified Party learns of such Claim; provided, however, that the failure to do so shall not relieve Buyer from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that such Third Party Claim does not seek to impose any Liability on the Seller Indemnified Party other than money damages, Buyer shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Seller Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim Buyer fails to diligently prosecute or withdraws from such defense, the Seller Indemnified Party shall have the right to undertake the defense. If Buyer is not controlling such defense, Buyer may participate therein at its own expense. Unless, in the reasonable opinion of competent counsel to the Seller Indemnified Party, a conflict of interest exists between the interests of the Seller Indemnified Party and Buyer that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by Buyer (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects to assume assumes the defense of any Third Party Claimsuch claims, the Seller Indemnifying Party will hold the Indemnified Party shall provide Buyer harmless from and its outside counsel with access to their personnel relating to against any such claim during normal business hours and shall otherwise reasonably cooperate with Buyer in the defense or settlement thereof. The party controlling the defense of such Claim shall not consent to a settlement of, or the entry all damages arising out of any judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that Buyer may consent to such a settlement or entry of judgment without the consent of the Seller Indemnified Parties to the extent it (a) includes an express and unconditional release of the Seller Indemnified Parties of all liability with respect to such Claim, and the amount payable thereunder does not exceed the limitations contemplated by Section 9.06(c), (b) imposes no injunctive or other equitable relief against any Seller Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Seller Indemnified Parties refuse to consent to a bona fide offer of settlement that Buyer wishes to accept and that (w) involves no payment of money approved by such Seller Indemnified Parties, (x) does not involve a finding Indemnifying Party or admission of wrongdoing and (y) releases such Seller Indemnified Parties from all liability any judgment in connection with such Claimclaim or litigation. Payment by an Indemnifying Party to an Indemnified Party shall be made within 10 days after demand, Buyer unless there is a claim or demand by a third party in which event payment shall be made within 10 days after final judgment, settlement or comprise, as the case may reassign the defense of such claim to such Seller Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by Buyer, at the sole cost and expense of such Seller Indemnified Parties. In such event, the obligation of Buyer with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Seller Indemnified Parties refused to accept or (ii) the aggregate Losses of the Seller Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith)be.
Appears in 1 contract
Samples: Asset Transfer Agreement (American Railcar Industries, Inc.)
Right to Defend, Etc. (a) Any Buyer Indemnified Party may make Claims for If the facts giving rise to any such indemnification hereunder pursuant to this Article 12 shall involve any actual claim or demand by giving prompt written notice thereof to the Majority Shareholder, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any third party (a “"Third Party Claim”), the Buyer ") against a Purchaser Indemnified Party or a Seller Indemnified Party, as the case may be (an "Indemnified Party") the party required to indemnify such Indemnified Party pursuant to Sections 12.1 or 12.2, as the case may be (the "Indemnifying Party") shall also give the Majority Shareholder written be entitled to notice of such claim claim. At such time as to which such Buyer Indemnified the remedy sought in the Third Party Claim is solely money damages or if Medical Manager otherwise permits, then Seller, at its sole cost and expense, may request indemnification hereunder or as to which assume the Threshold may be applied as soon as is practicable and in any event within twenty (20) days defense of the time that such Buyer Indemnified Third Party learns of such Claim; provided, however, that . If Seller assumes the failure to do so shall not relieve the Majority Shareholder from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case defense of a Third Party Claim, provided that (i) such Third Party Claim does not seek then Seller shall select counsel reasonably satisfactory to impose any Liability on the Buyer Indemnified Party other than money damages and (ii) the reasonably foreseeable Losses of such claim, together with all other claims for indemnification hereunder, exceed the Threshold but do not exceed the Cap, the Majority Shareholder shall have the right Medical Manager to direct, through counsel of its own choosing that is reasonably acceptable to the Buyer Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim the Majority Shareholder fails to diligently prosecute or withdraws from such defense, the Buyer Indemnified Party shall have the right to undertake conduct the defense. If the Majority Shareholder is not controlling such defense, the Majority Shareholder may participate therein at its own expense. Unless, in the reasonable opinion of competent counsel to the Buyer Indemnified Party, a conflict of interest exists between the interests of the Buyer Indemnified Party and the Majority Shareholder that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by the Majority Shareholder (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects to assume the defense of any Third Party Claim, the Buyer Indemnified Party shall provide the Majority Shareholder and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with the Majority Shareholder in the defense or settlement thereof. The party controlling the defense of such Claim Seller shall not consent to a settlement of, or the entry of any judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that the Majority Shareholder may consent to such a settlement or entry of judgment without the consent of the Buyer Indemnified Parties to the extent it (a) includes an express and unconditional release of the Buyer Indemnified Parties of all liability with respect to such Third Party Claim, except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, and the amount payable thereunder does not exceed the Cap or the limitations contemplated by Section 9.06(c), as applicable, (b) imposes no injunctive or other equitable relief against any Buyer Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Buyer Indemnified Parties refuse to consent to a bona fide offer of settlement that the Majority Shareholder wishes to accept and that (w) involves no payment of money by such Buyer Indemnified Parties (other than pursuant to the Threshold), (x) involves no material limitation on the future operation of the business of the Company and its Subsidiaries, (y) does not involve a finding or admission of wrongdoing and (z) releases such Buyer Indemnified Parties from all liability in connection with such Claim except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, the Majority Shareholder may reassign the defense of such claim to such Buyer Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by the Majority Shareholder, at the sole cost and expense of such Buyer Indemnified Parties. In such event, the obligation of the Majority Shareholder with respect thereto shall not exceed the lesser of unless (i) the amount settlement or judgment is solely for money damages and Seller admits in writing its liability to hold Medical Manager and the Purchaser harmless from and against any losses, damages, expenses and liabilities arising out of the offer of such settlement that such Buyer Indemnified Parties refused to accept or judgment or (ii) the aggregate Losses of the Buyer Indemnified Parties Medical Manager reasonably consents thereto. Seller shall provide Medical Manager with respect to such claim ten (including, for the avoidance of doubt, any costs and expenses incurred therewith).
(b10) Any Seller Indemnified Party may make Claims for indemnification hereunder by giving prompt days prior written notice thereof before it consents to Buyera settlement of, prior to or the end entry of the applicable survival period. If indemnification is sought for a Claim by or in respect of judgment arising from, any Third Party Claim. Medical Manager and the Purchaser shall be entitled to participate, the Seller Indemnified Party shall also give Buyer written notice of such claim as to which such Seller Indemnified Party may request indemnification hereunder as is practicable and in any event within twenty (20) days of the time that such Seller Indemnified Party learns of such Claim; provided, however, that the failure to do so shall not relieve Buyer from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that such Third Party Claim does not seek to impose any Liability on the Seller Indemnified Party other than money damages, Buyer shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Seller Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim Buyer fails to diligently prosecute or withdraws from such defense, the Seller Indemnified Party shall have the right to undertake the defense. If Buyer is not controlling such defense, Buyer may participate therein at its their own expense. Unless, in the reasonable opinion of competent counsel to the Seller Indemnified Party, a conflict of interest exists between the interests of the Seller Indemnified Party and Buyer that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by Buyer (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects to assume the defense of any Third Party Claim, the defense of which is assumed by Seller Indemnified with its own counsel. With respect to Third Party shall provide Buyer Claims in which, and its outside counsel with access for so long as, the remedy sought is not money damages and Medical Manager does not permit Seller to their personnel relating assume the defense, Seller shall, upon notice to any such claim during normal business hours and shall otherwise reasonably cooperate with Buyer Medical Manager within fifteen (15) days after Seller receives notices of the Third Party Claim, be entitled to participate in the defense with his own counsel at its own expense. In such instance, or settlement thereof. The party controlling if Seller does not assume or participate in the defense of such any Third Party Claim in accordance with the terms of this Section, Seller shall not consent be bound by the results obtained by Medical Manager with respect to the Third Party Claim. Medical Manager shall provide Seller with ten (10) days prior written notice before it consents to a settlement of, or the entry of any a judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that Buyer may consent to such a settlement or entry of judgment without the consent of the Seller Indemnified Parties to the extent it (a) includes an express and unconditional release of the Seller Indemnified Parties of all liability with respect to such Third Party Claim, and the amount payable thereunder does not exceed the limitations contemplated by Section 9.06(c), (b) imposes no injunctive or other equitable relief against any Seller Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Seller Indemnified Parties refuse to consent to a bona fide offer of settlement that Buyer wishes to accept and that (w) involves no payment of money by such Seller Indemnified Parties, (x) does not involve a finding or admission of wrongdoing and (y) releases such Seller Indemnified Parties from all liability in connection with such Claim, Buyer may reassign the defense of such claim to such Seller Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by Buyer, at the sole cost and expense of such Seller Indemnified Parties. In such event, the obligation of Buyer with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Seller Indemnified Parties refused to accept or (ii) the aggregate Losses of the Seller Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith).
Appears in 1 contract
Samples: Asset Purchase Agreement (Physician Computer Network Inc /Nj)
Right to Defend, Etc. (a) Any Buyer Indemnified Party may make Claims for If the facts giving rise to any such indemnification hereunder pursuant to this Article VII shall involve any actual claim or demand by giving prompt written notice thereof to the Majority Shareholder, prior to the end of the applicable survival period. If indemnification is sought for a Claim by or in respect of any third party (against a “Third Party Claim”), the Buyer Purchaser Indemnified Party or a Company Indemnified Party, as the case may be (an "Indemnified Party") the party required to indemnify such Indemnified Party pursuant to Sections 7.01 or 7.02, as the case may be (the "Indemnifying Party") shall also give the Majority Shareholder written be entitled to notice of and entitled (without prejudice to the right of any Indemnified Party to participate at its own expense through counsel of its own choosing) to defend or prosecute such claim as to which such Buyer Indemnified Party may request indemnification hereunder or as to which the Threshold may be applied as soon as is practicable at its expense and in any event within twenty (20) days of the time that such Buyer Indemnified Party learns of such Claim; provided, however, that the failure to do so shall not relieve the Majority Shareholder from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that (i) such Third Party Claim does not seek to impose any Liability on the Buyer Indemnified Party other than money damages and (ii) the reasonably foreseeable Losses of such claim, together with all other claims for indemnification hereunder, exceed the Threshold but do not exceed the Cap, the Majority Shareholder shall have the right to direct, through counsel of its own choosing if it gives written notice of its intention to do so no later than the 15th day following receipt of such notice; PROVIDED, HOWEVER, that is reasonably acceptable if the defendants in any action shall include both a Indemnify ing Party and an Indemnified Party and the Indemnified Party shall have been advised by its counsel that the counsel selected by the Indemnifying Party has a conflict of interest because of the availability of different or additional defenses to the Buyer Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim the Majority Shareholder fails to diligently prosecute or withdraws from such defense, the Buyer Indemnified Party shall have the right to undertake the defense. If the Majority Shareholder is not controlling such defense, the Majority Shareholder may participate therein at its own expense. Unless, in the reasonable opinion of competent select separate counsel to the Buyer Indemnified Party, a conflict of interest exists between the interests of the Buyer Indemnified Party and the Majority Shareholder that requires representation by separate counsel, participate in which case the fees and expenses of one such separate counsel will be paid by the Majority Shareholder (subject to the limitations set forth in this Article IX, including those in Section 9.06). If the Majority Shareholder elects to assume the defense of any Third Party Claim, the Buyer Indemnified Party shall provide the Majority Shareholder and its outside counsel with access to their personnel relating to any such claim during normal business hours and shall otherwise reasonably cooperate with the Majority Shareholder in the defense or settlement thereof. The party controlling the defense of such Claim action on its behalf, at the expense of the Indemnifying Party. The failure so to notify an Indemnifying Party shall not consent to a settlement of, or the entry relieve it of any judgment arising from, liability which it may have to any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that the Majority Shareholder may consent to such a settlement or entry of judgment without the consent of the Buyer Indemnified Parties Party except to the extent it (a) includes an express and unconditional release to which such liability may have been mitigated as a result of the Buyer Indemnified Parties timely receipt of all liability with respect to such Claim, except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, and the amount payable thereunder does not exceed the Cap or the limitations contemplated by Section 9.06(c), as applicable, (b) imposes no injunctive or other equitable relief against any Buyer notice. The Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Buyer Indemnified Parties refuse to consent to a bona fide offer of settlement that the Majority Shareholder wishes to accept and that (w) involves no payment of money by such Buyer Indemnified Parties (other than pursuant to the Threshold), (x) involves no material limitation on the future operation of the business of the Company and its Subsidiaries, (y) does not involve a finding or admission of wrongdoing and (z) releases such Buyer Indemnified Parties from all liability shall cooperate fully in connection with such Claim except for payments that would be required to be paid by the Buyer Indemnified Parties representing the Threshold, the Majority Shareholder may reassign the defense of such claim and shall make available to such Buyer Indemnified Partiesthe Indemnifying Party pertinent information under its control relating thereto, who may then continue but shall be entitled to pursue the defense of such matterbe reimbursed, free of any participation by the Majority Shareholder, at the sole cost and expense of such Buyer Indemnified Parties. In such event, the obligation of the Majority Shareholder with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Buyer Indemnified Parties refused to accept or (ii) the aggregate Losses of the Buyer Indemnified Parties with respect to such claim (includingas provided in this Article VII, for the avoidance of doubt, any all out-of-pocket costs and expenses payable to third parties incurred by it in connection therewith).
(b) Any Seller Indemnified Party may make Claims for indemnification hereunder by giving prompt written notice thereof to Buyer, prior to the end including, without limitation, reasonable fees and disbursements of the applicable survival periodcounsel. If indemnification is sought for a Claim by or in respect of any Third Indemnifying Party Claim, the Seller Indemnified Party shall also give Buyer written notice of such claim as to which such Seller Indemnified Party may request indemnification hereunder as is practicable and in any event within twenty (20) days of the time that such Seller Indemnified Party learns of such Claim; provided, however, that the failure to do so shall not relieve Buyer from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state in reasonable detail the basis and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of a Third Party Claim, provided that such Third Party Claim does not seek to impose any Liability on the Seller Indemnified Party other than money damages, Buyer shall have the right to direct, through counsel of its own choosing that is reasonably acceptable to the Seller Indemnified Party, the defense or settlement of any such Third Party Claim (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects not to defend or if, after commencing or undertaking any such defense, of any such Third Party Claim Buyer fails to diligently prosecute or withdraws from such defense, the Seller Indemnified Party shall have the right to undertake the defense. If Buyer is not controlling such defense, Buyer may participate therein at its own expense. Unless, in the reasonable opinion of competent counsel to the Seller Indemnified Party, a conflict of interest exists between the interests of the Seller Indemnified Party and Buyer that requires representation by separate counsel, in which case the fees and expenses of one such separate counsel will be paid by Buyer (subject to the limitations set forth in this Article IX, including those in Section 9.06). If Buyer elects to assume assumes the defense of any Third Party Claimsuch claims, the Seller Indemnifying Party will hold the Indemnified Party shall provide Buyer harmless from and its outside counsel with access to their personnel relating to against any such claim during normal business hours and shall otherwise reasonably cooperate with Buyer in the defense or settlement thereof. The party controlling the defense of such Claim shall not consent to a settlement of, or the entry all damages arising out of any judgment arising from, any such Claim without the prior written consent of the party not controlling such defense (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that Buyer may consent to such a settlement or entry of judgment without the consent of the Seller Indemnified Parties to the extent it (a) includes an express and unconditional release of the Seller Indemnified Parties of all liability with respect to such Claim, and the amount payable thereunder does not exceed the limitations contemplated by Section 9.06(c), (b) imposes no injunctive or other equitable relief against any Seller Indemnified Party and (c) does not involve a finding or admission of wrongdoing; and provided further, however, that if the Seller Indemnified Parties refuse to consent to a bona fide offer of settlement that Buyer wishes to accept and that (w) involves no payment of money approved by such Seller Indemnified Parties, (x) does not involve a finding Indemnifying Party or admission of wrongdoing and (y) releases such Seller Indemnified Parties from all liability any judgment in connection with such Claimclaim or litigation. Payment by an Indemnifying Party to an Indemnified Party shall be made within ten (10) days after demand, Buyer unless there is a claim or demand by a third party in which event payment shall be made within ten (10) days after final judgment, settlement or comprise, as the case may reassign the defense of such claim to such Seller Indemnified Parties, who may then continue to pursue the defense of such matter, free of any participation by Buyer, at the sole cost and expense of such Seller Indemnified Parties. In such event, the obligation of Buyer with respect thereto shall not exceed the lesser of (i) the amount of the offer of settlement that such Seller Indemnified Parties refused to accept or (ii) the aggregate Losses of the Seller Indemnified Parties with respect to such claim (including, for the avoidance of doubt, any costs and expenses incurred therewith)be.
Appears in 1 contract
Samples: Securities Purchase Agreement (Delicious Brands Inc)
