Terms and Conditions of Indemnification. The respective obligations and liabilities of the Company and Stone (each, an "indemnifying party") to indemnify pursuant to this Paragraph 11 shall be subject to the following terms and conditions: (i) The party seeking to be indemnified (the "Indemnified Party") shall give the indemnifying party prompt written notice of any such claim. The Indemnified Party's failure to give prompt notice, however, shall not serve to eliminate or limit the Indemnified Party's right to indemnification hereunder except to the extent such failure materially prejudices the rights of the indemnifying party. (ii) Promptly after receipt by an Indemnified Party of notice of the commencement of such action, suit, or proceeding for which such Indemnified Party is entitled to indemnification under this Paragraph 11, such Indemnified Party will notify the indemnifying party of the commencement thereof in writing; but the failure to so notify the indemnifying party (i) will not relieve it from any liability under paragraphs (a) or (b) above except to the extent such indemnifying party has been materially prejudiced by such failure (including, without limitation, that such failure results in the forfeiture by the indemnifying party of substantial rights and defenses) and (ii) will not, in any event, relieve the indemnifying party from any obligations to any Indemnified Party other than the indemnification obligation provided in Subparagraphs 11(a) and (b) above. In case any such action is brought against any Indemnified Party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party; provided, however, that if (A) the indemnifying party has failed to assume the defense thereof and employ such counsel or (B) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the Indemnified Party and the indemnifying party and the Indemnified Party shall have been advised by counsel that representation of such indemnifying party and such Indemnified Party by the same counsel would be inappropriate under applicable standards of professional conduct due to differing interests between them, then, in each such case, the indemnifying party shall not have the right to direct the defense of such action on behalf of such Indemnified Party or parties and such Indemnified Party or parties shall have the right to select separate counsel to defend such action on behalf of such Indemnified Party of its election so to assume the defense thereof and the reasonable approval by such Indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such Indemnified Party under this Paragraph 11 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such Indemnified Party in connection with the defense thereof, unless (A) the Indemnified Party shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by the Indemnified Parties, (B) the indemnifying party has authorized in writing the employment of counsel for the Indemnified Party at the expense of the indemnifying party or (C) the indemnifying party shall have failed to assume promptly after notice of the institution of such action the defense of such action or retain counsel reasonably satisfactory to the Indemnified Party. After such notice from the indemnifying party to such Indemnified Party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action effected by such Indemnified Party without the consent of the indemnifying party, which consent shall not be unreasonably withheld or delayed. (iii) The Indemnified Party shall be kept fully informed by the indemnifying party of such action, suit, or proceeding at all stages thereof, whether or not it is represented by counsel. The indemnifying party shall, at the indemnifying party's expense, make available to the Indemnified Party and its attorneys and accountants all books and records of the indemnifying party relating to such proceedings or litigation, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such action, suit, or proceeding. (iv) The indemnifying party shall, without Indemnified Party's consent, make no settlement of any claims that the indemnifying party has undertaken to defend unless the indemnifying party fully indemnifies the Indemnified Party for all Losses, there is no finding or admission of violation of law by, or effect on any other claims that may be made against the Indemnified Party and the relief granted in connection therewith requires no action on the part of and has no effect on the Indemnified Party. However, in the event the indemnifying party shall not offer reasonable assurances as to its financial capacity to satisfy any final judgment or [ILLEGIBLE] and dispose of the claim after 30 days prior written notice to the indemnifying party.
Appears in 1 contract
Terms and Conditions of Indemnification. The respective obligations and liabilities of the Company and Stone the Purchasers (each, an "indemnifying partyIndemnifying Party") to indemnify pursuant to this Paragraph Section 11 shall be subject to the following terms and conditions:
(ia) The party seeking to be indemnified (the "Indemnified Party") shall give the indemnifying party Indemnifying Party prompt written notice of any such claim. The Indemnified Party's failure to give prompt notice, however, shall not serve to eliminate or limit the Indemnified Party's right to indemnification hereunder except to the extent such failure materially prejudices the rights of the indemnifying partyIndemnifying Party.
(iib) Promptly after receipt by an Indemnified Party of notice of the commencement of such action, suit, suit or proceeding for which such Indemnified Party is entitled to indemnification under this Paragraph Section 11, such Indemnified Party will notify the indemnifying party Indemnifying Party of the commencement thereof in writing; but the failure so to so notify the indemnifying party Indemnifying Party (i) will not relieve it from any liability under paragraphs (a) or (b) Sections 11.1 and 11.2 above except to the extent such indemnifying party Indemnifying Party has been materially prejudiced by such failure (including, without limitation, that such failure results in the forfeiture by the indemnifying party Indemnifying Party of substantial rights and defenses) and (ii) will not, in any event, relieve the indemnifying party Indemnifying Party from any obligations to any Indemnified Party other than the indemnification obligation provided in Subparagraphs 11(a) Sections 11.1 and (b) 11.2 above. In case any such action is brought against any Indemnified Party Party, and it notifies the indemnifying party Indemnifying Party of the commencement thereof, the indemnifying party Indemnifying Party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party Indemnifying Party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party; provided, however, that if (Ai) the indemnifying party Indemnifying Party has failed to assume the defense thereof and employ such counsel or (Bii) the named parties to any such action (including any impleaded parties) include both the indemnifying party Indemnifying Party and the Indemnified Party and the indemnifying party Indemnifying Party and the Indemnified Party shall have been advised by counsel that representation of such indemnifying party Indemnifying Party and such Indemnified Party by the same counsel would be inappropriate under applicable standards of professional conduct due to differing interests between them, then, in each such case, the indemnifying party Indemnifying Party shall not have the right to direct the defense of such action on behalf of such Indemnified Party or parties and such Indemnified Party or parties shall have the right to select separate counsel to defend such action on behalf of such Indemnified Party of its election so to assume the defense thereof and the reasonable approval by such Indemnified party of counsel appointed to defend such action, the indemnifying party Indemnifying Party will not be liable to such Indemnified Party under this Paragraph Section 11 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such Indemnified Party in connection with the defense thereof, unless (Ai) the Indemnified Party shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (it being understood, however, that in connection with such action the indemnifying party Indemnifying Party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by the Indemnified Parties, (Bii) the indemnifying party Indemnifying Party has authorized in writing the employment of counsel for the Indemnified Party at the expense of the indemnifying party Indemnifying Party or (Ciii) the indemnifying party Indemnifying Party shall have failed to assume promptly after notice of the institution of such action the defense of such action or retain counsel reasonably satisfactory to the Indemnified Party. After such notice from the indemnifying party Indemnifying Party to such Indemnified Party, the indemnifying party Indemnifying Party will not be liable for the costs and expenses of any settlement of such action effected by such Indemnified Party without the consent of the indemnifying partyIndemnifying Party, which consent shall not be unreasonably withheld or delayed.
(iiic) The Indemnified Party shall be kept fully informed by the indemnifying party Indemnifying Party of such action, suit, suit or proceeding at all stages thereof, whether or not it is represented by counsel. The indemnifying party Indemnifying Party shall, at the indemnifying partyIndemnifying Party's expense, make available to the Indemnified Party and its attorneys and accountants all books and records of the indemnifying party Indemnifying Party relating to such proceedings or litigation, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such action, suit, suit or proceeding.
(ivd) The indemnifying party shall, without Indemnified Party's consent, Indemnifying Party shall make no settlement of any claims that the indemnifying party which such Indemnifying Party has undertaken to defend defend, without the Indemnified Party's consent unless the indemnifying party Indemnifying Party fully indemnifies the Indemnified Party for all Losseslosses, there is no finding or admission of violation of law by, or effect on any other claims that may be made against the Indemnified Party and the relief granted in connection therewith requires no action on the part of and has no effect on the Indemnified Party. However, in the event the indemnifying Indemnifying party shall not offer reasonable assurances as to its financial capacity to satisfy any final judgment or [ILLEGIBLE] settlement, the Indemnified Party may assume the defense and dispose of the claim claim, after 30 days prior written notice to the indemnifying Indemnifying party.
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Terms and Conditions of Indemnification. The respective indemnification obligations and liabilities of the Company and Stone the Investors (each, each an "indemnifying partyIndemnifying Party") to indemnify pursuant to under this Paragraph 11 Section 6 shall be subject to the following terms and conditions:
(ia) The party seeking to be indemnified (the "Indemnified Party") shall give the indemnifying party Indemnifying Party prompt written notice Notice of any such claimClaim. The Indemnified Party's failure to give prompt noticeNotice, however, shall not serve to eliminate or limit the Indemnified Party's right to indemnification hereunder except to the extent such that the failure materially prejudices the rights of the indemnifying partyIndemnifying Party.
(iib) Promptly after receipt by an Indemnified Party of notice The indemnification obligation of the commencement of such action, suit, or proceeding for which such Indemnified Indemnifying Party is entitled to indemnification under this Paragraph 11, such Indemnified Party will notify the indemnifying Section 6 in respect of any Claim by a third party of the commencement thereof in writing; but the failure to so notify the indemnifying party (i) will not relieve it from any liability under paragraphs (a) or (b) above except shall be subject to the extent such indemnifying party has been materially prejudiced by such failure following additional terms and conditions:
(including, without limitation, that such failure results in the forfeiture by the indemnifying party of substantial rights and defenses1) and (ii) will not, in any event, relieve the indemnifying party from any obligations to any Indemnified The Indemnifying Party other than the indemnification obligation provided in Subparagraphs 11(a) and (b) above. In case any such action is brought against any Indemnified Party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party; provided, however, that if (A) the indemnifying party has failed to assume the defense thereof and employ such counsel or (B) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the Indemnified Party and the indemnifying party and the Indemnified Party shall have been advised by counsel that representation of such indemnifying party and such Indemnified Party by the same counsel would be inappropriate under applicable standards of professional conduct due to differing interests between them, then, in each such case, the indemnifying party shall not have the right to direct the defense of such action on behalf of such Indemnified Party or parties and such Indemnified Party or parties shall have the right to select separate undertake, by counsel to defend such action on behalf of such Indemnified Party or other representatives of its election so to assume the defense thereof and the reasonable approval by such Indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such Indemnified Party under this Paragraph 11 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such Indemnified Party in connection with the defense thereof, unless (A) the Indemnified Party shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by the Indemnified Parties, (B) the indemnifying party has authorized in writing the employment of counsel for the Indemnified Party at the expense of the indemnifying party or (C) the indemnifying party shall have failed to assume promptly after notice of the institution of such action the defense of such action or retain counsel own choosing reasonably satisfactory to the Indemnified Party. After such notice , the defense, compromise and settlement of the Claim.
(2) In the event that the Indemnifying Party elects not to undertake the defense or within a reasonable time after written Notice of the Claim from the indemnifying Indemnified Party fails to defend, the Indemnified Party (upon further written Notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of the Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party.
(c) Notwithstanding anything to the contrary in this Section 6: (i) if there is a reasonable probability that a Claim may materially and adversely affect the Indemnified Party other than as a result of money damages or other money payments, the Indemnified Party shall have the right, at its cost and expense, to participate in the defense, compromise or settlement of the Claim; (ii) the Indemnifying Party shall not, without the Indemnified Party's written consent, settle or compromise any Claim or consent to entry of any judgment which does not include as an unconditional term a release by the claiming party to such or plaintiff of the Indemnified Party from all liability in respect of the Claim; and (iii) in the event that the Indemnifying Party undertakes the defense of any Claim, the Indemnified Party, the indemnifying party will not be liable for the costs by counsel or other representatives of its own choosing and expenses of any settlement of such action effected by such Indemnified Party without the consent of the indemnifying party, which consent shall not be unreasonably withheld or delayed.
(iii) The Indemnified Party shall be kept fully informed by the indemnifying party of such action, suit, or proceeding at all stages thereof, whether or not it is represented by counsel. The indemnifying party shall, at the indemnifying party's its sole cost and expense, make available shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning the Claim (other than any Claim for money damages with respect to which the Indemnifying Party has agreed to indemnify the Indemnified Party), and the Indemnifying Party and the Indemnified Party and its attorneys and accountants all books and records of the indemnifying party relating to such proceedings their respective counsel or litigation, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such action, suit, or proceeding.
(iv) The indemnifying party shall, without Indemnified Party's consent, make no settlement of any claims that the indemnifying party has undertaken to defend unless the indemnifying party fully indemnifies the Indemnified Party for all Losses, there is no finding or admission of violation of law by, or effect on any other claims that may be made against the Indemnified Party and the relief granted in connection therewith requires no action on the part of and has no effect on the Indemnified Party. However, in the event the indemnifying party representatives shall not offer reasonable assurances as to its financial capacity to satisfy any final judgment or [ILLEGIBLE] and dispose of the claim after 30 days prior written notice cooperate with respect to the indemnifying partyClaim, subject to the execution and delivery of a mutually satisfactory joint defense agreement.
Appears in 1 contract
Samples: Series a Convertible Preferred Stock Purchase Agreement (Stericycle Inc)
Terms and Conditions of Indemnification. (a) Any Party seeking indemnification must give the other Party (provided, however, any notice due to or from a Stockholder shall be made only by or to the Stockholders’ Representative) written notice of the claim for Damages (i) stating in reasonable detail the basis on which indemnification is being asserted and the aggregate amount of the Damages or an estimate thereof, in each case to the extent known or determinable at such time, (ii) specifying in reasonable detail the individual items of such Damages included in the amount so stated, and the nature of the misrepresentation, breach or claim to which such item is related (to the extent known or determinable at such time), (iii) specifying the provision or provisions of this Agreement under which such Damages are asserted, and (iv) including copies of all notices and documents (including court papers) served on or received by the indemnified Party (such notice a “Claim Notice”); provided, however, that no delay on the part of the indemnified party in notifying any indemnifying party (or providing all of the information described above) shall relieve the indemnifying party from any liability or obligation hereunder unless (and then solely to the extent that) the indemnifying party thereby is materially prejudiced by such failure to give timely notice or to timely provide such information. A Claim Notice may be updated and amended from time to time by delivering an updated or amended Claim Notice to other Party, so long as such update or amendment only asserts bases for Damages reasonably related to the underlying facts and circumstances specifically set forth in such original Claim Notice. All Claims properly set forth in an original Claim Notice or any update or amendment thereto shall remain outstanding until such Claims for Damages have been finally resolved or satisfied.
(b) The respective obligations and liabilities of the Company and Stone (each, an "indemnifying party") Parties to indemnify pursuant to this Paragraph 11 Article IX in respect of any Damages arising from a claim by a third party (a “Third-Party Claim”) shall be subject to the following additional terms and conditions:
(i) The party seeking to be indemnified (Parent shall have the "Indemnified Party") shall give the indemnifying party prompt written notice of any such claim. The Indemnified Party's failure to give prompt notice, however, shall not serve to eliminate or limit the Indemnified Party's right to indemnification hereunder except to undertake, by counsel or other representatives of its own choosing, the extent such failure materially prejudices the rights of the indemnifying party.
(ii) Promptly after receipt by an Indemnified Party of notice of the commencement defense, compromise, and settlement of such action, suit, or proceeding for which such Indemnified Third-Party is entitled to indemnification under this Paragraph 11, such Indemnified Party will notify the indemnifying party of the commencement thereof in writing; but the failure to so notify the indemnifying party (i) will not relieve it from any liability under paragraphs (a) or (b) above except to the extent such indemnifying party has been materially prejudiced by such failure (including, without limitation, that such failure results in the forfeiture by the indemnifying party of substantial rights and defenses) and (ii) will not, in any event, relieve the indemnifying party from any obligations to any Indemnified Party other than the indemnification obligation provided in Subparagraphs 11(a) and (b) above. In case any such action is brought against any Indemnified Party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified PartyClaim; provided, however, that if to the extent GDC America, Inc. is the indemnified party, Parent shall not, without the prior written consent of the Stockholder’s Representative (such consent not to be unreasonably withheld, conditioned or delayed), consent to a compromise or settlement of any claim.
(ii) In the event that a Parent Indemnified Party is the indemnified party and Parent elects not to undertake such defense, or fails to defend or fail to diligently prosecute the defense of such Third-Party Claim, the indemnifying party, shall have the right to undertake the defense, compromise or settlement of such claim, by counsel or other representatives of its own choosing; provided, however, that the indemnifying party shall not, without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), consent to a compromise or settlement of such claim; provided, however, that Parent may withhold its consent in its sole discretion for the compromise or settlement of any claim that (x) seeks an injunction or other equitable relief against Parent, its Subsidiaries or Affiliates (including the Surviving Corporation), (y) includes any admission of guilt, culpability, fault or wrongdoing, or (z) results in money damages that are the responsibility of Parent, its Subsidiaries or Affiliates (including the Surviving Corporation).
(iii) Notwithstanding anything in this Section 9.6 to the contrary, (A) in the event that the indemnifying party has failed undertakes defense of any claim, the indemnified party shall have the right to assume participate in the defense thereof defense, compromise or settlement of the claim at its own cost and employ such expense; provided that if in the reasonable opinion of counsel to the indemnified party, (x) there are legal defenses available to an indemnified party that are different from or additional to those available to the indemnifying party or (By) the named parties to any such action (including any impleaded parties) include both there exists a conflict of interest between the indemnifying party and the Indemnified Party and the indemnifying indemnified party and the Indemnified Party shall have been advised by counsel that representation of such indemnifying party and such Indemnified Party by the same counsel would cannot be inappropriate under applicable standards of professional conduct due to differing interests between them, then, in each such casewaived, the indemnifying party shall not have the right to direct the defense of such action on behalf of such Indemnified Party or parties and such Indemnified Party or parties shall have the right to select separate counsel to defend such action on behalf of such Indemnified Party of its election so to assume the defense thereof and the reasonable approval by such Indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such Indemnified Party under this Paragraph 11 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such Indemnified Party in connection with the defense thereof, unless (A) the Indemnified Party shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not be liable for the reasonable fees and expenses of more than one separate counsel (to the indemnified party in addition to local counsel) in any one action or separate but substantially similar actions in each jurisdiction for which the same jurisdiction arising out of the same general allegations or circumstances, designated by the Indemnified Parties, indemnified party determines counsel is required and (B) the indemnifying party has authorized in writing the employment of counsel for the Indemnified Party at the expense of the indemnifying party or (C) the indemnifying party shall have failed to assume promptly after notice of the institution of such action the defense of such action or retain counsel reasonably satisfactory to the Indemnified Party. After such notice from the indemnifying party to such Indemnified Party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action effected by such Indemnified Party without the consent of the indemnifying party, which consent shall not be unreasonably withheld or delayed.
(iii) The Indemnified Party shall be kept fully informed by the indemnifying party of such action, suit, or proceeding at all stages thereof, whether or not it is represented by counsel. The indemnifying party shall, at the indemnifying party's expense, make available to the Indemnified Party and its attorneys and accountants all books and records of the indemnifying party relating to such proceedings or litigation, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such action, suit, or proceeding.
(iv) The indemnifying party shall, without Indemnified Party's consent, make no settlement of any claims that the indemnifying party has undertaken to defend unless the indemnifying party fully indemnifies the Indemnified Party for all Losses, there is no finding or admission of violation of law by, or effect on any other claims that may be made against the Indemnified Party and the relief granted in connection therewith requires no action on the part of and has no effect on the Indemnified Party. However, in the event the indemnifying party and the indemnified party are unable to cooperate or agree with respect to the defense, consent, settlement or compromise of any claim, the Parties shall not offer reasonable assurances as engage an independent arbitrator to its financial capacity to satisfy any final judgment or [ILLEGIBLE] and dispose of the claim after 30 days prior written notice to consult with the indemnifying party, the indemnified party and their respective counsels and other representatives in connection with such claim, and the decision of the arbitrator as to the defense, consent, settlement or compromise of any claim shall be binding and conclusive upon the Parties to this Agreement.
(iv) Parent’s reasonable costs and expenses in connection with the defense, settlement or resolution of a Third-Party Claim shall constitute Damages whether or not it is ultimately determined that the Third-Party Claim itself is indemnifiable under Section 9.1. No Stockholder has any individual right to assert any claims for indemnification under this Article IX. Any and all claims for indemnification under this Article IX of any Stockholder Indemnified Party may be brought only by the Stockholders’ Representative (or its successor). Notwithstanding anything to the contrary contained in this Section 9.6(b), in the event of any conflict between the provisions of this Section 9.6(b) and Section 10.5 with respect to any Pre-Closing Tax Contests, Section 10.5 shall control to the extent of such conflict.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Gambling.com Group LTD)
Terms and Conditions of Indemnification. The respective obligations obliga- tions and liabilities of the Company Purchaser and Stone (each, an "indemnifying party") Parent to indemnify pursuant to this Paragraph 11 Article 10 shall be subject to the following terms and conditions:
(i) The party seeking to be indemnified indemnification (the "Indemnified PartyClaimant") shall give the indemnifying party prompt written notice to the other party (the "Indemnitor") of any such claimstate of facts which Claimant determines will give rise to a claim by the Claimant against the Indemnitor based on the indemnity agreements contained in this Article 10, stating the nature and basis of said claims and the amounts thereof, to the extent known. The Indemnified Party's No failure to give prompt notice, however, such notice shall not serve to eliminate or limit affect the Indemnified Party's right to indemnification obligations of Indemnitor hereunder except to the extent Indemnitor can demonstrate such failure materially prejudices prejudiced such Indemnitor's ability to successfully defend the rights of matter giving rise to the indemnifying partyindemnification claim.
(ii) Promptly after receipt by an Indemnified Party In the event any action, suit or proceeding is brought against Claimant, with respect to which the Indemnitor may have liability under this Article 10, then if Indemnitor notifies Claimant in writing, within thirty (30) days of Claimant's notice of the commencement of such action, suitsuit or proceeding, that Indemnitor agrees that it is undertaking and will prosecute the defense of the claim under this Article 10, such action, suit or proceeding may be defended by the Indemnitor. Claimant shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at Claimant's own expense unless (A) the employment of such counsel and the payment of such fees and expenses both shall have been specifically authorized by the Indemnitor in connection with the defense of such action, suit or proceeding, or (B) Claimant shall have reasonably concluded and specifically notified the Indemnitor that there may be specific defenses available to it which are different from or additional to those available to the Indemnitor, or that such action, suit or proceeding for which such Indemnified Party is entitled to indemnification under this Paragraph 11, such Indemnified Party will notify involves or could have an effect upon matters beyond the indemnifying party scope of the commencement thereof indemnity agreements contained in writing; but this Article 10.
(iii) In addition, in any event specified in clause (B) of the failure to so notify the indemnifying party (i) will not relieve it from any liability under paragraphs (a) or (b) above except to the extent such indemnifying party has been materially prejudiced by such failure (including, without limitation, that such failure results in the forfeiture by the indemnifying party second sentence of substantial rights and defenses) and subsection (ii) will not, in any event, relieve the indemnifying party from any obligations to any Indemnified Party other than the indemnification obligation provided in Subparagraphs 11(a) and (b) above. In case any such action is brought against any Indemnified Party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein andIndemnitor, to the extent that it may wishmade necessary by such different or additional defenses, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party; provided, however, that if (A) the indemnifying party has failed to assume the defense thereof and employ such counsel or (B) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the Indemnified Party and the indemnifying party and the Indemnified Party shall have been advised by counsel that representation of such indemnifying party and such Indemnified Party by the same counsel would be inappropriate under applicable standards of professional conduct due to differing interests between them, then, in each such case, the indemnifying party shall not have the right to direct the defense of such action action, suit or proceeding on behalf of such Indemnified Party or parties Claimant. If Indemnitor and such Indemnified Party or parties shall have the right Claimant cannot agree on a mechanism to select separate counsel to defend such action on behalf of such Indemnified Party of its election so to assume the defense thereof and the reasonable approval by such Indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such Indemnified Party under this Paragraph 11 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such Indemnified Party in connection with the defense thereof, unless (A) the Indemnified Party shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by the Indemnified Parties, (B) the indemnifying party has authorized in writing the employment of counsel for the Indemnified Party at the expense of the indemnifying party or (C) the indemnifying party shall have failed to assume promptly after notice of the institution of such action the defense of matters extending beyond the scope of indemnification, such action or retain counsel reasonably satisfactory to matters shall be defended on the Indemnified Party. After such notice from the indemnifying party to such Indemnified Party, the indemnifying party will not be liable for the costs and expenses basis of any settlement of such action effected by such Indemnified Party without the consent of the indemnifying party, which consent shall not be unreasonably withheld or delayedjoint consultation.
(iiiiv) The Indemnified Party Claimant shall be kept fully informed by the indemnifying party Indemnitor of such action, suit, suit or proceeding at all stages thereof, whether or not it is represented by counsel. The indemnifying party Indemnitor shall, at the indemnifying partyIndemnitor's expense, make available to the Indemnified Party Claimant and its attorneys and accountants all books and records of the indemnifying party Indemnitor relating to such proceedings or litigation, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such action, suit, or proceeding.
(iv) The indemnifying party shall, without Indemnified Party's consent, make no settlement of any claims that the indemnifying party has undertaken to defend unless the indemnifying party fully indemnifies the Indemnified Party for all Losses, there is no finding or admission of violation of law by, or effect on any other claims that may be made against the Indemnified Party and the relief granted in connection therewith requires no action on the part of and has no effect on the Indemnified Party. However, in the event the indemnifying party shall not offer reasonable assurances as to its financial capacity to satisfy any final judgment or [ILLEGIBLE] and dispose of the claim after 30 days prior written notice to the indemnifying party.or
Appears in 1 contract
Terms and Conditions of Indemnification. (a) Any Party seeking indemnification must give the other Party (provided, however, any notice due to or from a Shareholder shall be made only by or to the Shareholders’ Representative) written notice of the claim for Damages (i) stating in reasonable detail the basis on which indemnification is being asserted and the aggregate amount of the Damages or an estimate thereof, in each case to the extent known or determinable at such time, (ii) specifying in reasonable detail the individual items of such Damages included in the amount so stated, and the nature of the misrepresentation, breach or claim to which such item is related (to the extent known or determinable at such time), (iii) specifying the provision or provisions of this Agreement under which such Damages are asserted, and (iv) including copies of all notices and documents (including court papers) served on or received by the indemnified Party (such notice a “Claim Notice”); provided, however, that no delay on the part of the indemnified party in notifying any indemnifying party (or providing all of the information described above) shall relieve the indemnifying party from any liability or obligation hereunder unless (and then solely to the extent that) the indemnifying party thereby is materially prejudiced by such failure to give timely notice or to timely provide such information. A Claim Notice may be updated and amended from time to time by delivering an updated or amended Claim Notice to other Party, so long as such update or amendment only asserts bases for Damages reasonably related to the underlying facts and circumstances specifically set forth in such original Claim Notice. All Claims properly set forth in an original Claim Notice or any update or amendment thereto shall remain outstanding until such Claims for Damages have been finally resolved or satisfied.
(b) The respective obligations and liabilities of the Company and Stone (each, an "indemnifying party") Parties to indemnify pursuant to this Paragraph 11 Article IX in respect of any Damages arising from a claim by a third party (a “Third-Party Claim”) shall be subject to the following additional terms and conditions:
(i) The party seeking to be indemnified (Parent shall have the "Indemnified Party") shall give the indemnifying party prompt written notice of any such claim. The Indemnified Party's failure to give prompt notice, however, shall not serve to eliminate or limit the Indemnified Party's right to indemnification hereunder except to undertake, by counsel or other representatives of its own choosing, the extent such failure materially prejudices the rights of the indemnifying party.
(ii) Promptly after receipt by an Indemnified Party of notice of the commencement defense, compromise, and settlement of such action, suit, or proceeding for which such Indemnified Third-Party is entitled to indemnification under this Paragraph 11, such Indemnified Party will notify the indemnifying party of the commencement thereof in writing; but the failure to so notify the indemnifying party (i) will not relieve it from any liability under paragraphs (a) or (b) above except to the extent such indemnifying party has been materially prejudiced by such failure (including, without limitation, that such failure results in the forfeiture by the indemnifying party of substantial rights and defenses) and (ii) will not, in any event, relieve the indemnifying party from any obligations to any Indemnified Party other than the indemnification obligation provided in Subparagraphs 11(a) and (b) above. In case any such action is brought against any Indemnified Party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified PartyClaim; provided, however, that if to the extent Parent is the indemnified party, Parent shall not, without the prior written consent of the Shareholders’ Representative (such consent not to be unreasonably withheld, conditioned or delayed), consent to a compromise or settlement of any claim.
(ii) In the event that Parent is the indemnified party and shall elect not to undertake such defense, or shall fail to defend or fail to diligently prosecute the defense of such Third-Party Claim, the indemnifying party, shall have the right to undertake the defense, compromise or settlement of such claim, by counsel or other representatives of its own choosing; provided, however, that the indemnifying party shall not, without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), consent to a compromise or settlement of such claim; provided, however, that Parent may withhold its consent in its sole discretion for the compromise or settlement of any claim that (x) seeks an injunction or other equitable relief against Parent, its Subsidiaries or Affiliates (including the Surviving Corporation), (y) includes any admission of guilt, culpability, fault or wrongdoing, or (z) results in money damages that are the responsibility of Parent, its Subsidiaries or Affiliates (including the Surviving Corporation).
(iii) Notwithstanding anything in this Section 9.6 to the contrary, (A) in the event that the indemnifying party has failed undertakes defense of any claim, the indemnified party shall have the right to assume participate in the defense thereof defense, compromise or settlement of the claim at its own cost and employ such expense; provided that if in the reasonable opinion of counsel to the indemnified party, (x) there are legal defenses available to an indemnified party that are different from or additional to those available to the indemnifying party or (By) the named parties to any such action (including any impleaded parties) include both there exists a conflict of interest between the indemnifying party and the Indemnified Party and the indemnifying indemnified party and the Indemnified Party shall have been advised by counsel that representation of such indemnifying party and such Indemnified Party by the same counsel would cannot be inappropriate under applicable standards of professional conduct due to differing interests between them, then, in each such casewaived, the indemnifying party shall not have the right to direct the defense of such action on behalf of such Indemnified Party or parties and such Indemnified Party or parties shall have the right to select separate counsel to defend such action on behalf of such Indemnified Party of its election so to assume the defense thereof and the reasonable approval by such Indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such Indemnified Party under this Paragraph 11 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such Indemnified Party in connection with the defense thereof, unless (A) the Indemnified Party shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not be liable for the reasonable fees and expenses of more than one separate counsel (to the indemnified party in addition to local counsel) in any one action or separate but substantially similar actions in each jurisdiction for which the same jurisdiction arising out of the same general allegations or circumstances, designated by the Indemnified Parties, indemnified party determines counsel is required and (B) the indemnifying party has authorized in writing the employment of counsel for the Indemnified Party at the expense of the indemnifying party or (C) the indemnifying party shall have failed to assume promptly after notice of the institution of such action the defense of such action or retain counsel reasonably satisfactory to the Indemnified Party. After such notice from the indemnifying party to such Indemnified Party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action effected by such Indemnified Party without the consent of the indemnifying party, which consent shall not be unreasonably withheld or delayed.
(iii) The Indemnified Party shall be kept fully informed by the indemnifying party of such action, suit, or proceeding at all stages thereof, whether or not it is represented by counsel. The indemnifying party shall, at the indemnifying party's expense, make available to the Indemnified Party and its attorneys and accountants all books and records of the indemnifying party relating to such proceedings or litigation, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such action, suit, or proceeding.
(iv) The indemnifying party shall, without Indemnified Party's consent, make no settlement of any claims that the indemnifying party has undertaken to defend unless the indemnifying party fully indemnifies the Indemnified Party for all Losses, there is no finding or admission of violation of law by, or effect on any other claims that may be made against the Indemnified Party and the relief granted in connection therewith requires no action on the part of and has no effect on the Indemnified Party. However, in the event the indemnifying party and the indemnified party are unable to cooperate or agree with respect to the defense, consent, settlement or compromise of any claim, the Parties shall not offer reasonable assurances engage an independent arbitrator to consult with the indemnifying party, the indemnified party and their respective counsels and other representatives in connection with such claim, and the decision of the arbitrator as to its financial capacity the defense, consent, settlement or compromise of any claim shall be binding and conclusive upon the Parties to satisfy this Agreement. For purposes of this Article IX, (i) if the Shareholders comprise the indemnifying party, any final judgment or [ILLEGIBLE] and dispose of the claim after 30 days prior written notice references to the indemnifying party (except provisions relating to an obligation to make or a right to receive any payments) will be deemed to refer to the Shareholders’ Representative and (ii) if a Shareholder Indemnified Party comprises the indemnified party, any references to the indemnified party (except provisions relating to an obligation to make or a right to receive any payments) will be deemed to refer to the Shareholders’ Representative. For the avoidance of doubt, in no event shall the Shareholders’ Representative have an obligation to provide any indemnification, have an obligation to pay or incur costs or expenses (other than on behalf of the Shareholders) or otherwise have any liability hereunder.
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Terms and Conditions of Indemnification. The respective obligations Purchaser Group shall only be entitled to bring claims for indemnification under Section 12.2 where it has suffered damages or losses in excess of $100,000. All claims for indemnification by the Purchaser Group under Section 12.2 will be asserted and liabilities of the Company and Stone (each, an "indemnifying party") to indemnify pursuant to this Paragraph 11 shall be subject to the following terms and conditionsresolved as follows:
(ia) The party seeking In the event any claim or demand in respect of which the Purchaser Group might seek indemnity under Section 12.2 is asserted against or sought to be indemnified collected from the Purchaser Group by a Person other than the Seller Group or the Purchaser Group (a "Third Party Claim"), the "Indemnified Party") Purchaser Group shall give deliver a Claim Notice with reasonable promptness to the indemnifying party prompt written Seller Group. If the Purchaser Group fails to provide the Claim Notice with reasonable promptness after the Purchaser Group receives notice of any such claim. The Indemnified Party's failure Third Party Claim, the Seller Group will not be obligated to give prompt notice, however, shall not serve indemnify the Purchaser Group with respect to eliminate or limit the Indemnified Party's right to indemnification hereunder except such Third Party Claim to the extent such failure materially prejudices that the rights of Seller Group's ability to defend against the indemnifying party.
(ii) Promptly after receipt by an Indemnified Party of notice of the commencement of such action, suit, or proceeding for which such Indemnified Party is entitled to indemnification under this Paragraph 11, such Indemnified Party will notify the indemnifying party of the commencement thereof in writing; but the failure to so notify the indemnifying party (i) will not relieve it from any liability under paragraphs (a) or (b) above except to the extent such indemnifying party claim has been actually and materially prejudiced by such failure (includingof the Purchaser Group. The Seller Group will notify the Purchaser Group as soon as practicable within the Dispute Period whether the Seller Group disputes its liability to the Purchaser Group under Section 12.2, without limitationand whether the Seller Group desires, that at its sole cost and expense, to defend the Purchaser Group against such failure results in the forfeiture by the indemnifying party of substantial rights and defenses) and (ii) will not, in any event, relieve the indemnifying party from any obligations to any Indemnified Third Party other than the indemnification obligation provided in Subparagraphs 11(a) and Claim.
(b) above. In case any such action is brought against any Indemnified Party and it If the Seller Group notifies the indemnifying party of Purchaser Group within the commencement thereof, Dispute Period that the indemnifying party will be entitled Seller Group desires to participate therein and, defend the Purchaser Group with respect to the extent that it may wishThird Party Claim pursuant to this Section 12.3, jointly with any other indemnifying party similarly notified, then the Seller Group will have the right to assume the defense thereofdefend, with counsel reasonably satisfactory to the Purchaser Group, at the sole cost and expense of the Seller Group, such Indemnified PartyThird Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Seller Group in a reasonable manner and in good faith or will be settled at the discretion of the Seller Group (but only with the consent of the Purchaser Group, which shall not be unreasonably withheld or delayed, in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Purchaser Group will not be indemnified in full pursuant to Section 12.2). The Seller Group will have full control of such defence and proceedings, including (subject to the preceding sentence) any compromise or settlement thereof; provided, however, that if (A) the indemnifying party has failed to assume the defense thereof and employ such counsel or (B) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the Indemnified Party and the indemnifying party and the Indemnified Party shall have been advised by counsel that representation of such indemnifying party and such Indemnified Party requested by the same counsel would be inappropriate under applicable standards of professional conduct due to differing interests between them, then, in each such caseSeller Group, the indemnifying party shall Purchaser Group will, at the sole cost and expense of the Seller Group, provide reasonable co-operation to the Seller Group in contesting any Third Party Claim that the Seller Group elects to contest. The Purchaser Group may participate in, but not control, any defence or settlement of any Third Party Claim controlled by the Seller Group pursuant to this clause, and except as provided in the preceding sentence, the Purchaser Group will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Purchaser Group may take over the control of the defence or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 12.2, with respect to such Third Party Claim.
(c) If the Seller Group notifies the Purchaser Group within the Dispute Period that the Seller Group does not desire to defend the Third Party Claim pursuant to Section 12.3(c), or if the Seller Group fails to give any notice whatsoever within the Dispute Period, or if the Purchaser Group reasonably concludes that it may have separate or different defences available to it that are not available to the Seller Group, then the Purchaser Group will have the right to direct defend, at the defense sole cost and expense of such action on behalf of such Indemnified Party or parties and such Indemnified Party or parties shall have the right to select separate counsel to defend such action on behalf of such Indemnified Party of its election so to assume the defense thereof and the reasonable approval by such Indemnified party of counsel appointed to defend such actionSeller Group, the indemnifying party Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Purchaser Group in a reasonable manner and in good faith or will be settled at the discretion of the Purchaser Group (with the consent of the Seller Group, which consent will not be liable to unreasonably withheld). The Purchaser Group will have full control of such Indemnified Party under this Paragraph 11 for any legal or other expensesdefence and proceedings, other than reasonable costs of investigation, subsequently incurred by such Indemnified Party in connection with the defense thereof, unless including (A) the Indemnified Party shall have employed separate counsel in accordance with the proviso subject to the immediately preceding sentence (it being understoodsentence) any compromise or settlement thereof; provided, however, that in connection with such action the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated if requested by the Indemnified PartiesPurchaser Group, (B) the indemnifying party has authorized in writing the employment of counsel for the Indemnified Party Seller Group will, at the sole cost and expense of the indemnifying party or (C) Seller Group, provide reasonable co-operation to the indemnifying party shall have failed Purchaser Group and its counsel in contesting any Third Party Claim which the Purchaser Group is contesting. Notwithstanding the foregoing provisions of this Section 12.3(c), if the Seller Group has notified the Purchaser Group within the Dispute Period that the Seller Group disputes its liability hereunder to assume promptly after notice the Purchaser Group with respect to such Third Party Claim and if such dispute is resolved in favour of the institution of such action Seller Group in the defense of such action or retain counsel reasonably satisfactory to the Indemnified Party. After such notice from the indemnifying party to such Indemnified Partymanner provided in Section 12.3(d) below, the indemnifying party Seller Group will not be liable for required to bear the costs and expenses of any settlement of such action effected by such Indemnified Party without the consent Purchaser Group's defence pursuant to this Section 12.3(c) or of the indemnifying partySeller Group's participation therein at the Purchaser Group's request, which consent shall and the Purchaser Group will reimburse the Seller Group in full for all reasonable costs and expenses incurred by the Seller Group in connection with such litigation. The Seller Group may participate in, but not be unreasonably withheld control, any defence or delayedsettlement controlled by the Purchaser Group pursuant to this Section 12.3(c), and the Seller Group will bear its own costs and expenses with respect to such participation.
(iiid) The Indemnified If the Seller Group notifies the Purchaser Group that it does not dispute its liability to the Purchaser Group with respect to the Third Party Claim under Section 12.2 or fails to notify the Purchaser Group within the Dispute Period whether the Seller Group disputes its liability to the Purchaser Group with respect to such Third Party Claim, the Seller Group shall indemnify the Purchaser Group for such liability. If the Seller Group has timely disputed its liability with respect to such claim, the Seller Group and the Purchaser Group will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be kept fully informed resolved by litigation in a court of competent jurisdiction. Pending such resolution the indemnifying party of such action, suit, or proceeding at all stages thereof, whether or not it is represented by counsel. The indemnifying party shall, at Seller Group shall nevertheless be obligated to indemnify the indemnifying party's expense, make available to the Indemnified Party and its attorneys and accountants all books and records of the indemnifying party relating to such proceedings or litigation, and the parties hereto agree to render to each other such assistance Purchaser Group as they may reasonably require of each other provided in order to ensure the proper and adequate defense of any such action, suit, or proceedingSection 12.3(c).
(ive) The indemnifying party shall, without Indemnified Party's consent, make no settlement of any claims that the indemnifying party has undertaken to defend unless the indemnifying party fully indemnifies the Indemnified Party for all Losses, there is no finding or admission of violation of law by, or effect on any other claims that may be made against the Indemnified Party and the relief granted in connection therewith requires no action on the part of and has no effect on the Indemnified Party. However, in In the event the indemnifying party Purchaser Group should have a claim under Section 12.2 against the Seller Group that does not involve a Third Party Claim, the Purchaser Group shall deliver an Indemnity Notice with reasonable promptness to the Seller Group. The failure by any Purchaser Group to give the Indemnity Notice shall not offer reasonable assurances as impair such party's rights hereunder except to its financial capacity the extent that an Seller Group demonstrates that it has been actually and materially prejudiced thereby. If the Seller Group notifies the Purchaser Group that it does not dispute the claim described in such Indemnity Notice or fails to satisfy any final judgment or [ILLEGIBLE] and dispose notify the Purchaser Group within the Dispute Period whether the Seller Group disputes the claim described in such Indemnity Notice, the Losses in the amount specified in the Indemnity Notice will be conclusively deemed a liability of the claim after 30 days prior written notice Seller Group under Section 12.2 and the Seller Group shall pay the amount of such Losses to the indemnifying partyPurchaser Group on demand. If the Seller Group has timely disputed its liability with respect to such claim, the Seller Group and the Purchaser Group will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved in a court of competent jurisdiction.
Appears in 1 contract
Terms and Conditions of Indemnification. The respective obligations and liabilities of the Company and Stone (each, an "indemnifying party") to indemnify pursuant to this Paragraph 11 parties shall be subject to the following terms and conditions:
(ia) The party seeking to be indemnified Any Party claiming any right of indemnification under Section 10.2 or Section 10.3 (an “Indemnified Party”) shall notify the Party or Parties from whom indemnification is sought (the "“Indemnifying Party”) as soon as is reasonably practicable after the Indemnified Party") Party becomes aware of any claim that such Party has that may result in a Loss (a “Liability Claim”). Any such notice shall give specify the indemnifying nature of the claim and the amount or estimated amount thereof (a “Claim Notice”). If any Claim Notice identifies a Liability Claim brought by a third party prompt (a “Third Party Claim” and together with the Liability Claims, the “Claims”), then the Indemnifying Party shall have the right, exercisable by written notice of any such claim. The Indemnified Party's failure to give prompt notice, however, shall not serve to eliminate or limit the Indemnified Party's right to indemnification hereunder except to Party within 20 days (the extent such failure materially prejudices the rights of the indemnifying party.
(ii“Notice Period”) Promptly after receipt by an Indemnified Party of notice of the commencement of such action, suit, or proceeding for which such Indemnified Party is entitled to indemnification under this Paragraph 11, such Indemnified Party will notify the indemnifying party of the commencement thereof in writing; but the failure to so notify the indemnifying party (i) will not relieve it from any liability under paragraphs (a) or (b) above except to the extent such indemnifying party has been materially prejudiced by such failure (including, without limitation, that such failure results in the forfeiture by the indemnifying party of substantial rights and defenses) and (ii) will not, in any event, relieve the indemnifying party from any obligations to any Indemnified Party other than the indemnification obligation provided in Subparagraphs 11(a) and (b) above. In case any such action is brought against any Indemnified Party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notifiedClaim Notice, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party; provided, however, that if (A) the indemnifying party has failed to assume the defense thereof and employ such counsel or (B) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the Indemnified Party and the indemnifying party and the Indemnified Party shall have been advised by counsel that representation of such indemnifying party and such Indemnified Party by the same counsel would be inappropriate under applicable standards of professional conduct due to differing interests between them, then, in each such case, the indemnifying party shall not have the right to direct the defense of such action on behalf of such Indemnified Third Party or parties and such Indemnified Party or parties shall have the right to select separate counsel to defend such action on behalf of such Indemnified Party of its election so to assume the defense thereof and the reasonable approval by such Indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such Indemnified Party under this Paragraph 11 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such Indemnified Party in connection with the defense thereof, unless (A) the Indemnified Party shall have employed separate counsel Claim in accordance with the proviso limits set forth in this Agreement with counsel selected by the Indemnifying Party and consented to the immediately preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by the Indemnified Parties, (B) the indemnifying party has authorized in writing the employment of counsel for the Indemnified Party at the expense of the indemnifying party or (C) the indemnifying party shall have failed to assume promptly after notice of the institution of such action the defense of such action or retain counsel reasonably satisfactory to the Indemnified Party. After such notice from the indemnifying party to such Indemnified Party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action effected by such Indemnified Party without the consent of the indemnifying party, which consent shall not be unreasonably withheld or delayeddelayed (it being agreed that Lxxx, Xxxxxx & Lxxx, Attorneys at Law, and Sxxxx Hxxxxx & Bxxxx, Professional Association, shall be acceptable counsel for purposes of this Section 10.4); provided that (i) the defense of such Third Party Claim by the Indemnifying Party will not, in the reasonable judgment of the Indemnified Party, have a Material Adverse Effect on the Indemnified Party; (ii) the Indemnifying Party has sufficient financial resources, in the reasonable judgment of the Indemnified Party, to satisfy the amount of any adverse monetary judgment that is reasonably likely to result; (iii) the Third Party Claim solely seeks (and continues to seek) monetary damages; (iv) the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party may satisfy and discharge the Third Party Claim only in accordance with the limits set forth in this Agreement; and (v) the Indemnifying Party expressly agrees in writing that it will be liable for any Losses incurred by the Indemnified Party pursuant to, and subject to the limitations set forth in, this Article 10 (the conditions set forth in clauses (i) through (v) are, collectively, the “Litigation Conditions”). The Notice Period for a Third Party Claim shall be reduced appropriately if the date on which a responsive pleading or other document is required to be filed giving effect to any available extension occurs sooner than 20 days following receipt of a Claim Notice therefor. In the event the Indemnifying Party does not assume the defense of a Third Party Claim in accordance with the provisions of this Section 10.4(a), then the Indemnified Party may continue to defend the Third Party Claim. If the Indemnifying Party has assumed the defense of a Third Party Claim as provided in this Section 10.4(a), then the Indemnifying Party shall not be liable for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense of the Third Party Claim; provided that if (i) any of the Litigation Conditions cease to be met or (ii) the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim, the Indemnified Party shall have the right to control the defense or settlement of such Claim, in its sole discretion, and the Indemnifying Party shall pay or reimburse the Indemnified Party for all reasonable costs and expenses paid or incurred in connection with such defense. If a Claim is covered or potentially covered by an insurance policy maintained by either Party, the Indemnifying Party shall have the power, with the reasonable assistance of the Indemnified Party if necessary, to direct such insurance company to defend the Claim and the Parties shall reasonably cooperate with each other to facilitate such insurance defense. The Indemnifying Party shall pay all amounts required under the deductible imposed by such insurance policy.
(iiib) The Indemnified Party shall be kept fully informed have the right to employ its own counsel in any case defended by the indemnifying party Indemnifying Party, but the fees and expenses of such action, suit, or proceeding counsel shall be at all stages thereof, whether or not it is represented by counsel. The indemnifying party shall, at the indemnifying party's such Indemnified Party’s expense, make available to the Indemnified Party and its attorneys and accountants all books and records of the indemnifying party relating to such proceedings or litigation, and the parties hereto agree to render to each other such assistance except as they may reasonably require of each other otherwise expressly provided in order to ensure the proper and adequate defense of any such action, suit, or proceedingSection 10.4(a).
(ivc) The indemnifying party shall, without In the event one Party (the “Potentially Indemnified Party's consent”) shall assert a Liability Claim against the other Party (the “Potentially Indemnifying Party”) that is not a Third Party Claim, make no settlement the Potentially Indemnifying Party shall have the right to dispute (a “Claim Dispute Notice”) the validity of any claims that the indemnifying party has undertaken to defend unless Liability Claim by advising the indemnifying party fully indemnifies the Potentially Indemnified Party for all Losses, there is no finding or admission in writing of violation such dispute within 15 Business Days of law by, or effect on any other claims that may be made against its receipt of the Claim Notice. The Parties shall have thirty (30) days (the “Compromise Period”) after the Potentially Indemnified Party and receives the relief granted in connection therewith requires no action on Claim Dispute Notice to reach a compromise regarding the part of and has no effect on the Indemnified Party. However, in the event the indemnifying party shall not offer reasonable assurances as to its financial capacity to satisfy any final judgment or [ILLEGIBLE] and dispose of the claim after 30 days prior written notice Liability Claim that is mutually acceptable to the indemnifying partyParties. Should the Parties fail to reach a mutually acceptable compromise during the Compromise Period, either Party shall be entitled to initiate an arbitration proceeding in accordance with Section 10.6.
Appears in 1 contract
Terms and Conditions of Indemnification. The respective obligations and liabilities of the Company Seller Parties and Stone (each, an "indemnifying party") of the Buyer Parties to indemnify each other pursuant to this Paragraph 11 Article XIV shall be subject to the following terms and conditions:
(ia) The party seeking to be indemnified indemnification (the "Indemnified PartyClaimant") shall must promptly give the indemnifying party prompt or parties from which it is seeking indemnification (collectively, the "Indemnitor"), written notice of any such claimClaim. The Indemnified PartyClaimant's failure to give prompt notice, however, shall not serve to eliminate or limit the Indemnified PartyClaimant's right to indemnification hereunder except to the extent such failure materially prejudices the rights of the indemnifying partyIndemnitor. Any indemnity notice (an "Indemnity Notice") shall state (with reasonable specificity) the basis on which any indemnification is being sought, set forth the amount of Damages for which indemnification is being sought, and in the case of third party claims, be accompanied by copies of all relevant pleadings, demands and other papers served on the Claimant.
(b) The respective obligations and liabilities of the Seller Parties and the Buyer Parties to indemnify pursuant to this Article XIV in respect of any Claim or assertion of liability by a third party shall be subject to the following additional terms and conditions:
(i) The Indemnitor shall have the right to undertake, by counsel of its own choosing reasonably satisfactory to Claimant, the defense, compromise and settlement of such Claim.
(ii) Promptly In the event that the Indemnitor shall elect not to undertake such defense, or within a reasonable time after receipt by an Indemnified Party of notice of any such Claim from the commencement of such actionClaimant shall fail to defend, suit, or proceeding for which such Indemnified Party is entitled to indemnification under this Paragraph 11, such Indemnified Party will notify the indemnifying party of the commencement thereof in writing; but the failure to so notify the indemnifying party Claimant (i) will not relieve it from any liability under paragraphs (a) or (b) above except upon further written notice to the extent such indemnifying party has been materially prejudiced by such failure (including, without limitation, that such failure results in the forfeiture by the indemnifying party of substantial rights and defensesIndemnitor) and (ii) will not, in any event, relieve the indemnifying party from any obligations to any Indemnified Party other than the indemnification obligation provided in Subparagraphs 11(a) and (b) above. In case any such action is brought against any Indemnified Party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party; provided, however, that if (A) the indemnifying party has failed to assume the defense thereof and employ such counsel or (B) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the Indemnified Party and the indemnifying party and the Indemnified Party shall have been advised by counsel that representation of such indemnifying party and such Indemnified Party by the same counsel would be inappropriate under applicable standards of professional conduct due to differing interests between them, then, in each such case, the indemnifying party shall not have the right to direct the defense of such action on behalf of such Indemnified Party or parties and such Indemnified Party or parties shall have the right to select separate undertake the defense, compromise or settlement of such Claim, by counsel to defend such action of its own choosing, on behalf of such Indemnified Party and for the account and risk of its election so the Indemnitor (subject to the right of the Indemnitor to assume the defense thereof and the reasonable approval by such Indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such Indemnified Party under this Paragraph 11 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such Indemnified Party in connection with the defense thereof, unless (A) the Indemnified Party shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by the Indemnified Parties, (B) the indemnifying party has authorized in writing the employment of counsel for the Indemnified Party at the expense of the indemnifying party or (C) the indemnifying party shall have failed to assume promptly after notice of the institution of such action the defense of such action Claim at any reasonable time prior to settlement, compromise or retain counsel reasonably satisfactory to the Indemnified Party. After such notice from the indemnifying party to such Indemnified Party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action effected by such Indemnified Party without the consent of the indemnifying party, which consent shall not be unreasonably withheld or delayedfinal determination thereof).
(iii) The Indemnified Party Anything in this Section 14.04 to the contrary notwithstanding, (a) if there is a reasonable probability that a Claim may materially and adversely affect the Claimant other than as a result of money damages or other money payments, the Claimant shall have the right, at its own cost and expense, to participate in the defense, compromise or settlement of the Claim, (b) the Indemnitor shall not, without the Claimant's written consent, settle or compromise any Claim or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claiming party or the plaintiff to the Claimant of a release from all liability in respect of such Claim, (c) the Indemnitor shall not, without the Claimant's written consent, consent to the entry of any order with respect to a Claim, or compromise or settle any Claim, on terms imposing any obligation on the Claimant other than the payment of money in a single installment (which amount shall be kept fully informed paid by Indemnitor), (d) except as set forth in subsection (iv) below, the indemnifying party Claimant shall not, without the Indemnitor's written consent, which shall not be unreasonably withheld, consent to the entry of such action, suitan order with respect to a Claim, or proceeding at all stages thereof, whether compromise or not it is represented by counsel. The indemnifying party shall, at settle any Claim and (e) in the indemnifying party's expense, make available to event that the Indemnified Party and its attorneys and accountants all books and records of Indemnitor undertakes the indemnifying party relating to such proceedings or litigation, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any Claim, the Claimant by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnitor and its counsel or other representatives concerning such action, suit, Claim and the Indemnitor and the Claimant and their respective counsel or proceedingother representatives shall cooperate with respect to such Claim.
(iv) The indemnifying party shallIf the Indemnitor fails to pay, without Indemnified Party's consentcompromise or settle the Claim within sixty (60) days of the date of receipt of the notice thereof pursuant to Section 14.04(a) or to commence to contest the Claim within such 60-day period and thereafter to prosecute such contest diligently, make no settlement of any claims that the indemnifying party has undertaken to defend unless Claimant may pay the indemnifying party fully indemnifies the Indemnified Party for all Losses, there is no finding or admission of violation of law by, or effect on any other claims that may be made against the Indemnified Party Claim and the relief granted in connection therewith requires no action on Indemnitor shall promptly, upon written demand of Claimant, reimburse Claimant for the part full amount of and has no effect on such payment, plus interest from the Indemnified Party. However, in the event the indemnifying party shall not offer reasonable assurances as to its financial capacity to satisfy any final judgment or [ILLEGIBLE] and dispose date of the claim after 30 days prior written notice such payment by Claimant to the indemnifying partydate of reimbursement by Indemnitor at the publicly announced base interest rate of Citibank, N.A. (or any successor bank) in effect from time to time during such period.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cross Country Healthcare Inc)
Terms and Conditions of Indemnification. The respective obligations and liabilities of the Company Sellers and Stone (each, an "indemnifying party") Buyer to indemnify pursuant to this Paragraph 11 ARTICLE X shall be subject to the following terms and conditions:
(ia) The party seeking to be indemnified indemnification (the "Indemnified PartyCLAIMANT") shall must give the indemnifying other party or parties, as the case may be (the "Indemnitor"), prompt written notice of any such claimClaim. The Indemnified PartyClaimant's failure to give prompt notice, however, shall not serve to eliminate or limit the Indemnified PartyClaimant's right to indemnification hereunder except to the extent such failure materially prejudices the rights of the indemnifying partyIndemnitor.
(b) The respective obligations and liabilities of Sellers and Buyer to indemnify pursuant to this ARTICLE IX in respect of any Claim by a third party shall be subject to the following additional terms and conditions:
(i) The Indemnitor shall have the right to undertake, by counsel or other representatives of its own choosing reasonably satisfactory to Claimant, the defense, compromise, and settlement of such Claim.
(ii) Promptly In the event that the Indemnitor shall elect not to undertake such defense, or within ten days after receipt by an Indemnified Party of notice of the commencement of such action, suit, or proceeding for which such Indemnified Party is entitled to indemnification under this Paragraph 11, such Indemnified Party will notify the indemnifying party of the commencement thereof in writing; but the failure to so notify the indemnifying party (i) will not relieve it from any liability under paragraphs (a) or (b) above except to the extent such indemnifying party has been materially prejudiced by such failure (including, without limitation, that such failure results in the forfeiture by the indemnifying party of substantial rights and defenses) and (ii) will not, in any event, relieve the indemnifying party from any obligations to any Indemnified Party other than the indemnification obligation provided in Subparagraphs 11(a) and (b) above. In case any such action is brought against any Indemnified Party and it notifies Claim from the indemnifying party of the commencement thereofClaimant shall fail to defend, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party; provided, however, that if (A) the indemnifying party has failed to assume the defense thereof and employ such counsel or (B) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the Indemnified Party and the indemnifying party and the Indemnified Party shall have been advised by counsel that representation of such indemnifying party and such Indemnified Party by the same counsel would be inappropriate under applicable standards of professional conduct due to differing interests between them, then, in each such case, the indemnifying party shall not have the right to direct the defense of such action on behalf of such Indemnified Party or parties and such Indemnified Party or parties Claimant shall have the right to select separate undertake the defense, compromise or settlement of such Claim, by counsel to defend such action or other representatives of its own choosing, on behalf of such Indemnified Party and for the account and risk of its election so the Indemnitor.
(iii) Notwithstanding anything in this SECTION 9.4 to assume the defense thereof and the reasonable approval by such Indemnified party of counsel appointed to defend such actioncontrary, the indemnifying party will not be liable to such Indemnified Party under this Paragraph 11 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such Indemnified Party in connection with the defense thereof, unless (A) if there is a reasonable probability that a Claim may materially and adversely affect the Indemnified Party Claimant other than as a result of money damages or other money payments, the Claimant shall have employed separate counsel in accordance with the proviso right, to the immediately preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) in any one action or separate but substantially similar actions participate in the same jurisdiction arising out defense, compromise or settlement of the same general allegations or circumstances, designated by the Indemnified PartiesClaim, (B) the indemnifying party has authorized in writing Indemnitor shall not, without the employment Claimant's written consent, settle or compromise any Claim or consent to entry of counsel for any judgment which does not include as an unconditional term thereof the Indemnified Party at giving by the expense of the indemnifying claiming party or the plaintiff to the Claimant of a release from all liability in respect of such Claim, and (C) in the indemnifying party shall have failed to assume promptly after notice of event that the institution of such action the defense of such action or retain counsel reasonably satisfactory to the Indemnified Party. After such notice from the indemnifying party to such Indemnified Party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action effected by such Indemnified Party without the consent of the indemnifying party, which consent shall not be unreasonably withheld or delayed.
(iii) The Indemnified Party shall be kept fully informed by the indemnifying party of such action, suit, or proceeding at all stages thereof, whether or not it is represented by counsel. The indemnifying party shall, at the indemnifying party's expense, make available to the Indemnified Party and its attorneys and accountants all books and records of the indemnifying party relating to such proceedings or litigation, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate Indemnitor undertakes defense of any Claim, the Claimant by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnitor and its counsel or other representatives concerning such action, suit, or proceeding.
(iv) The indemnifying party shall, without Indemnified Party's consent, make no settlement of any claims that the indemnifying party has undertaken to defend unless the indemnifying party fully indemnifies the Indemnified Party for all Losses, there is no finding or admission of violation of law by, or effect on any other claims that may be made against the Indemnified Party Claim and the relief granted in connection therewith requires no action on Indemnitor and the part of Claimant and has no effect on the Indemnified Party. Howevertheir respective counsel or other representatives shall cooperate with respect to such Claim, in the event the indemnifying party shall not offer reasonable assurances as to its financial capacity to satisfy any final judgment or [ILLEGIBLE] and dispose of the claim after 30 days prior written notice subject to the indemnifying partyexecution and delivery of a mutually satisfactory joint defense agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Cross Country Healthcare Inc)
Terms and Conditions of Indemnification. The respective obligations and liabilities Liabilities of the Company Sellers and Stone (each, an "indemnifying party") Buyer to indemnify pursuant to this Paragraph 11 Article VIII shall be subject to the following terms and conditions:
(ia) The party seeking to be indemnified indemnification (the "Indemnified Party"“Claimant”) shall must give the indemnifying other party prompt written or parties, as the case may be (the “Indemnitor”), prompt, written, reasonably detailed notice of any such claimClaim (the “Claim Notice”). The Indemnified Party's Claimant’s failure to give a prompt noticeClaim Notice, however, shall not serve to eliminate eliminate, limit or limit waive the Indemnified Party's Claimant’s right to indemnification hereunder except to the extent the Indemnitor is actually prejudiced as a result of such failure materially prejudices failure.
(b) The respective obligations and Liabilities of Sellers and Buyer to indemnify pursuant to this Article VIII in respect of any Claim by a third party shall be subject to the rights following additional terms and conditions:
(i) The Indemnitor shall have the right to undertake, by counsel or other Representatives of its own choosing reasonably satisfactory to Claimant, the defense, compromise, and settlement of such Claim unless (A) the Indemnitor fails to make reasonably adequate provision of the indemnifying partyIndemnitor’s ability to satisfy and discharge the Claim, or (B) the claimed indemnification is subject to a Liability cap pursuant to Section 8.2 or 8.3 and the reasonably estimated amount of likely damages in connection with such Claim is greater than the unused portion of the applicable liability cap (the foregoing clauses (A) and (B), collectively, the “Litigation Conditions”).
(ii) Promptly after receipt by an Indemnified Party of notice of In the commencement of such action, suit, or proceeding for which such Indemnified Party is entitled to indemnification under this Paragraph 11, such Indemnified Party will notify the indemnifying party of the commencement thereof in writing; but the failure to so notify the indemnifying party (i) will not relieve it from any liability under paragraphs (a) or (b) above except to the extent such indemnifying party has been materially prejudiced by such failure (including, without limitation, event that such failure results in the forfeiture by the indemnifying party of substantial rights and defenses) and (ii) will not, in any event, relieve the indemnifying party from any obligations to any Indemnified Party other than the indemnification obligation provided in Subparagraphs 11(a) and (b) above. In case any such action is brought against any Indemnified Party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party; provided, however, that if (A) the indemnifying party has failed Indemnitor shall elect not to assume the defense thereof and employ undertake such counsel or defense, (B) the named parties to within thirty (30) days after receipt of written notice of any such action (including any impleaded parties) include both the indemnifying party and the Indemnified Party and the indemnifying party and the Indemnified Party shall have been advised by counsel that representation of such indemnifying party and such Indemnified Party by the same counsel would be inappropriate under applicable standards of professional conduct due to differing interests between them, then, in each such caseClaim from Claimant, the indemnifying party Indemnitor shall not have fail to notify the right Indemnitee that it will defend such Claim, or (C) any of the Litigation Conditions applies, the Claimant (upon further written notice to direct the defense of such action on behalf of such Indemnified Party or parties and such Indemnified Party or parties Indemnitor) shall have the right to select separate undertake the defense, compromise or settlement of such Claim, by counsel to defend such action or other Representatives of its own choosing, on behalf of such Indemnified Party of its election so to assume the defense thereof and the reasonable approval by such Indemnified party of counsel appointed to defend such actionof, the indemnifying party will not be liable to such Indemnified Party under this Paragraph 11 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such Indemnified Party in connection with the defense thereof, unless (A) the Indemnified Party shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by the Indemnified Parties, (B) the indemnifying party has authorized in writing the employment of counsel for the Indemnified Party at the expense of and for the indemnifying party or (C) the indemnifying party shall have failed to assume promptly after notice account and risk of the institution Indemnitor; provided, that the Indemnitor may participate in such defense with counsel of its choosing at its sole cost and expense; provided, further, that the Claimant shall not settle or compromise any such action the defense of such action or retain counsel reasonably satisfactory to the Indemnified Party. After such notice from the indemnifying party to such Indemnified Party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action effected by such Indemnified Party Claim without the prior written consent of the indemnifying partyIndemnitor, which consent shall not be unreasonably withheld or delayed.
(iii) The Indemnified Party Notwithstanding anything in this Section 8.4 to the contrary, (A) if there is a reasonable probability that a Claim may materially and adversely affect the Claimant other than as a result of money damages or other money payments, the Claimant shall have the right, at its own cost and expense, to participate in the defense, compromise or settlement of the Claim, (B) the Indemnitor shall not, without the Claimant’s written consent (which consent shall not be kept fully informed unreasonably withheld or delayed) settle or compromise any Claim or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the indemnifying claiming party or the plaintiff to the Claimant of a release from all liability in respect of such action, suit, or proceeding at all stages thereof, whether or not it is represented by counsel. The indemnifying party shall, at the indemnifying party's expense, make available to the Indemnified Party and its attorneys and accountants all books and records of the indemnifying party relating to such proceedings or litigationClaim, and (C) in the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure event that the proper and adequate Indemnitor undertakes defense of any Claim, the Claimant by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnitor and its counsel or other Representatives concerning such actionClaim and the Indemnitor and the Claimant and their respective counsel or other Representatives shall reasonably cooperate with respect to such Claim, suit, or proceedingsubject to the execution and delivery of a mutually satisfactory joint defense agreement.
(ivc) The indemnifying party shall, without Indemnified Party's consent, make no settlement amount of any claims that Claim subject to indemnification hereunder shall be calculated net of any insurance proceeds (net of collection expenses) actually received by the indemnifying party has undertaken to defend unless the indemnifying party fully indemnifies the Indemnified Party for all Losses, there is no finding or admission Claimant on account of violation of law by, or effect on any other claims that may be made against the Indemnified Party such Claim. Buyer and the relief granted Sellers shall use commercially reasonable efforts to recover under insurance policies for any Claims; provided, however, that all out-of-pocket costs incurred in connection therewith requires no action on collecting such proceeds shall be borne by the part of and has no effect on the Indemnified PartyIndemnitor. HoweverIf a party receives any insurance proceeds or other compensation, in the event the indemnifying with respect to a matter or claim, after having received any indemnification payment under this Agreement with respect to such matter or claim, such party shall not offer reasonable assurances as to its financial capacity to satisfy any final judgment or [ILLEGIBLE] and dispose of the claim after 30 days prior written notice will promptly refund to the indemnifying partyother party an amount equal to such net insurance proceeds.
(d) The parties agree that any indemnification payments made pursuant to this Agreement shall be treated for Tax purposes as an adjustment to the Purchase Price, unless otherwise required by Law.
Appears in 1 contract
Terms and Conditions of Indemnification. The respective obligations and liabilities Liabilities of the Company Seller Parties and Stone (each, an "indemnifying party") Buyer to indemnify pursuant to this Paragraph 11 Article VIII shall be subject to the following terms and conditions:
(ia) The party seeking to be indemnified indemnification (the "Indemnified Party"“Claimant”) shall must give the indemnifying other party prompt written or parties, as the case may be (the “Indemnitor”), prompt, written, reasonably detailed notice of any such claimClaim (the “Claim Notice”). The Indemnified Party's Claimant’s failure to give a prompt noticeClaim Notice, however, shall not serve to eliminate eliminate, limit or limit waive the Indemnified Party's Claimant’s right to indemnification hereunder except to the extent the Indemnitor is actually prejudiced as a result of such failure materially prejudices the rights failure.
(b) The respective obligations and Liabilities of the indemnifying partySeller Parties and Buyer to indemnify pursuant to this Article VIII in respect of any Claim by a third party shall be subject to the following additional terms and conditions:
(i) The Indemnitor shall have the right to undertake, by counsel or other Representatives of its own choosing reasonably satisfactory to Claimant, the defense, compromise, and settlement of such Claim unless (A) the Indemnitor fails to make reasonably adequate provision of the Indemnitor’s ability to satisfy and discharge the Claim, or (B) the claimed indemnification is subject to a Liability cap pursuant to Section 8.2 or 8.3 and the reasonably estimated amount of likely damages in connection with such Claim is greater than the unused portion of the applicable Liability cap.
(ii) Promptly after receipt by an Indemnified Party of notice of In the commencement of such action, suit, or proceeding for which such Indemnified Party is entitled to indemnification under this Paragraph 11, such Indemnified Party will notify the indemnifying party of the commencement thereof in writing; but the failure to so notify the indemnifying party (i) will not relieve it from any liability under paragraphs (a) or (b) above except to the extent such indemnifying party has been materially prejudiced by such failure (including, without limitation, event that such failure results in the forfeiture by the indemnifying party of substantial rights and defenses) and (ii) will not, in any event, relieve the indemnifying party from any obligations to any Indemnified Party other than the indemnification obligation provided in Subparagraphs 11(a) and (b) above. In case any such action is brought against any Indemnified Party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party; provided, however, that if (A) the indemnifying party has failed Indemnitor shall elect not to assume undertake such defense, (B) within thirty (30) days after receipt of written notice of any such Claim from Claimant, the defense thereof and employ Indemnitor shall fail to notify the Claimant that it will defend such counsel Claim, or (C) any of the conditions set forth in clauses (A) or (B) the named parties to any such action (including any impleaded partiesof Section 8.4(b)(i) include both the indemnifying party and the Indemnified Party and the indemnifying party and the Indemnified Party shall have been advised by counsel that representation of such indemnifying party and such Indemnified Party by the same counsel would be inappropriate under applicable standards of professional conduct due to differing interests between them, then, in each such caseabove apply, the indemnifying party shall not have Claimant (upon further written notice to the right to direct the defense of such action on behalf of such Indemnified Party or parties and such Indemnified Party or parties Indemnitor) shall have the right to select separate undertake the defense, compromise or settlement of such Claim, by counsel to defend such action or other Representatives of its own choosing, on behalf of such Indemnified Party of its election so to assume the defense thereof and the reasonable approval by such Indemnified party of counsel appointed to defend such actionof, the indemnifying party will not be liable to such Indemnified Party under this Paragraph 11 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such Indemnified Party in connection with the defense thereof, unless (A) the Indemnified Party shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by the Indemnified Parties, (B) the indemnifying party has authorized in writing the employment of counsel for the Indemnified Party at the expense of and for the indemnifying party or (C) the indemnifying party shall have failed to assume promptly after notice account and risk of the institution Indemnitor; provided, that the Indemnitor may participate in such defense with counsel of its choosing at its sole cost and expense; provided, further, that the Claimant shall not settle or compromise any such action the defense of such action or retain counsel reasonably satisfactory to the Indemnified Party. After such notice from the indemnifying party to such Indemnified Party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action effected by such Indemnified Party Claim without the prior written consent of the indemnifying partyIndemnitor, which consent shall not be unreasonably withheld or delayed.
(iii) The Indemnified Party Notwithstanding anything in this Section 8.4 to the contrary, (A) if there is a reasonable probability that a Claim may materially and adversely affect the Claimant other than as a result of money damages or other money payments, the Claimant shall have the right, at its own cost and expense, to participate in the defense, compromise or settlement of the Claim, (B) the Indemnitor shall not, without the Claimant’s written consent (which consent shall not be kept fully informed unreasonably withheld or delayed) settle or compromise any Claim or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the indemnifying claiming party or the plaintiff to the Claimant of a release from all liability in respect of such action, suit, or proceeding at all stages thereof, whether or not it is represented by counsel. The indemnifying party shall, at the indemnifying party's expense, make available to the Indemnified Party and its attorneys and accountants all books and records of the indemnifying party relating to such proceedings or litigationClaim, and (C) in the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure event that the proper and adequate Indemnitor undertakes defense of any Claim, the Claimant by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnitor and its counsel or other Representatives concerning such actionClaim and the Indemnitor and the Claimant and their respective counsel or other Representatives shall reasonably cooperate with respect to such Claim, suit, or proceedingsubject to the execution and delivery of a mutually satisfactory joint defense agreement.
(ivc) The indemnifying party shall, without Indemnified Party's consent, make no settlement amount of any claims that Claim subject to indemnification hereunder shall be calculated net of any insurance proceeds (net of collection expenses) actually received by the indemnifying party has undertaken to defend unless the indemnifying party fully indemnifies the Indemnified Party for all Losses, there is no finding or admission Claimant on account of violation of law by, or effect on any other claims that may be made against the Indemnified Party such Claim. Buyer and the relief granted Seller Parties shall use commercially reasonable efforts to recover under insurance policies for any Claims; provided, however, that all out-of-pocket costs incurred in connection therewith requires no action on collecting such proceeds shall be borne by the part Indemnitor. If a party receives any insurance proceeds or other compensation, with respect to a matter or claim, after having received any indemnification payment under this Agreement with respect to such matter or claim, such party will promptly refund to the other party an amount equal to such net insurance proceeds.
(d) The parties agree that any indemnification payments made pursuant to this Agreement shall be treated for Tax purposes as an adjustment to the Purchase Price, unless otherwise required by Law.
(e) In calculating the amount of any Claim subject to indemnification hereunder, the party entitled to indemnification shall be entitled to all damages available at law or in equity, including without limitation, consequential and has no effect on the Indemnified Party. However, in the event the indemnifying party shall not offer reasonable assurances incidental damages as well as to its financial capacity damage attributable to satisfy any final judgment or [ILLEGIBLE] and dispose of the claim after 30 days prior written notice to the indemnifying partydiminution in value.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cross Country Healthcare Inc)
Terms and Conditions of Indemnification. The respective obligations and liabilities of the Company and Stone (each, an "indemnifying party") to indemnify pursuant to this Paragraph 11 shall be subject to the following terms and conditions:
(i) The party seeking to be indemnified Any Person making a claim for indemnification under this Section 13 (including any Third Party Claim) (the "Indemnified Party") shall must give the indemnifying party (the "Indemnifier") prompt written notice of any such claimclaim for Damages. Such notice shall describe in reasonable detail such claim and the nature and amount, or anticipated amount, of the Damages, to the extent that the nature and amount thereof are determinable at such time. The Indemnified Party's ’s failure to give prompt prompt notice, however, shall not serve to eliminate eliminate, limit or limit reduce the Indemnified Party's ’s right to indemnification hereunder except to the extent such failure actually and materially prejudices the rights of the indemnifying partyIndemnifier.
(ii) Promptly after receipt by an Indemnified The obligations of SB, the Founders and the SB Securityholders to indemnify pursuant to this Section 13 in respect of any Third Party of notice of the commencement of such action, suit, or proceeding for which such Indemnified Party is entitled to indemnification under this Paragraph 11, such Indemnified Party will notify the indemnifying party of the commencement thereof in writing; but the failure to so notify the indemnifying party (i) will not relieve it from any liability under paragraphs (a) or (b) above except Claim shall be subject to the extent such indemnifying party has been materially prejudiced by such failure following additional terms and conditions:
(including, without limitation, that such failure results in 1) If the forfeiture by Indemnifier acknowledges its Liability for the indemnifying party of substantial rights and defenses) and (ii) will not, in any event, relieve the indemnifying party from any obligations to any Indemnified Third Party other than the indemnification obligation provided in Subparagraphs 11(a) and (b) above. In case any such action is brought against any Indemnified Party and it notifies the indemnifying party of the commencement thereofClaim, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party; provided, however, that if (A) the indemnifying party has failed to assume the defense thereof and employ such counsel or (B) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the Indemnified Party and the indemnifying party and the Indemnified Party shall have been advised by counsel that representation of such indemnifying party and such Indemnified Party by the same counsel would be inappropriate under applicable standards of professional conduct due to differing interests between them, then, in each such case, the indemnifying party shall not have the right to direct the defense of such action on behalf of such Indemnified Party or parties and such Indemnified Party or parties Indemnifier shall have the right to select separate undertake, at its sole expense, by counsel of its own choosing reasonably satisfactory to defend such action on behalf the Indemnified Party, acting reasonably, the defense, compromise, and settlement of such claim unless (A) the Indemnifier fails to make reasonably adequate provision to satisfy the Indemnified Party of its election so the Indemnifier’s ability to assume finance the defense thereof and satisfy and discharge the reasonable approval by such Indemnified party of counsel appointed claim, (B) the claim for indemnification relates to defend such action, the indemnifying party will not be liable to such Indemnified Party under this Paragraph 11 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such Indemnified Party arises in connection with any criminal Legal Proceeding; (C) the Indemnified Party reasonably believes an adverse determination with respect to the Legal Proceeding giving rise to such claim for indemnification would be materially detrimental to or materially injure the SB or the Indemnified Party's reputation or future business prospects; (D) the claim seeks an injunction or equitable relief against the Indemnified Party; or (E) the claimed indemnifications involves a dispute between SB, on the one hand, and one of its customers, suppliers, landlords or employees (in which case the Indemnified Party shall consult with the Indemnifier from time to time with respect to material developments regarding any such dispute) (the foregoing clauses (A) through (E), collectively, the "Litigation Conditions").
(2) In the event that (A) the Indemnifier elects not to undertake such defense, (B) within thirty (30) days after notice of any such claim from the Indemnified Party, the Indemnifier shall fail to diligently defend such claim and to continue to diligently defend such claim, or (C) any of the Litigation Conditions applies, the Indemnified Party (upon further written notice to the Indemnifier) shall have the right to undertake the defense thereofof such claim, unless compromise or settlement, by counsel or other Representatives of its own choosing, on behalf of, at the expense of and for the account and risk of the Indemnifier.
(A3) Notwithstanding anything in this Section 13(d) to the contrary, if there is a reasonable probability that a claim may materially and adversely affect the Indemnified Party other than as a result of money damages or other money payments: (i) the Indemnified Party shall have employed separate the right, at its own cost and expense, to participate in the defense, compromise or settlement of the claim; (ii) the Indemnifier shall not, without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), settle or compromise any claim or consent to entry of any judgment; and (iii) in the event that the Indemnifier undertakes the defense of any claim, the Indemnified Party by counsel in accordance or other Representative of its own choosing and at its sole cost and expense, shall have the right to consult with the proviso Indemnifier and its counsel or other Representatives concerning such claim and the Indemnifier and the Indemnified Party and their respective counsel or other Representatives shall reasonably cooperate with respect to such claim and shall provide such information as the Indemnified Party reasonably requests, in each case, subject to the execution and delivery of a mutually satisfactory joint defense agreement.
(iii) Once Damages are agreed to by the Indemnifier or finally adjudicated to be payable under this Section 13(d), the Indemnifier shall satisfy its obligations within 15 Business Days of such final, non-appealable adjudication by wire transfer of immediately preceding sentence available funds. Any payment made in respect of indemnification under this Agreement shall be treated for all purposes, and shall constitute, an adjustment to the Purchase Price, as adjusted pursuant to the terms of this Agreement, except where otherwise required by Applicable Law.
(it being understoodiv) If the amount of Damages incurred by an Indemnified Party at any time subsequent to the making of an indemnity payment is reduced by any recovery, howeversettlement or otherwise under any insurance coverage or under any claim, that recovery, settlement or payment by or against any other Person actually received by an Indemnified Party, the Indemnified Party shall promptly repay to the Indemnifier the amount of the reduction (less any reasonable costs and expenses (including Taxes)). Each Indemnified Party shall use commercially reasonable efforts to recover from insurance policies in respect of any such Damages.
(v) The Parties will cooperate fully with each other in connection with the defense of any Third Party Claim.
(vi) Notwithstanding anything to the contrary in this Section 13(d), this Section 13(d)(vi) will control any audit, inquiry, assessment, action or other similar event relating to Taxes of SB. The Representing Person, on behalf of the Founders, has the right to represent SB's interests before the relevant Governmental Entity with respect to any audit, inquiry, assessment, action or other similar event relating to a taxation year or other fiscal period of SB that ends prior to or on the Acquisition Effective Time (a "Tax Matter") and has the right to control the defense, compromise or other resolution of any such action Tax Matter, including responding to inquiries, filing Tax returns and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of, or relating to, such Tax Matter at the indemnifying party Founders' sole expense, including employment of counsel and experts reasonably satisfactory to the Optionee. The Optionee shall not provide prompt notice to the Representing Person, on behalf of the Founders, of any inquiries made by any Governmental Entity (including any proposed or actual assessments or reassessments) to the extent that the subject matter thereof would reasonably be expected to give rise to Taxes for which the Founders may be liable for under this Agreement. The Representing Person and the expenses of more than one separate counsel (in addition to local counsel) in any one action Optionee shall forthwith advise the Optionee or separate but substantially similar actions in the same jurisdiction arising out Representing Person, respectively, of the same general allegations substance of any such inquiries or circumstancesdiscussions received or undertaken and provide the Representing Person or the Optionee, designated by as applicable, with copies of any written communications from any Governmental Entity relating to such inquiries or discussions. The Optionee shall provide the Indemnified PartiesFounders with such cooperation, (B) the indemnifying party has authorized documentation, personnel and information as they reasonably may request in writing the employment of counsel for the Indemnified Party connection with undertaking any Tax Matter, but at the expense of the indemnifying party or (C) the indemnifying party Founders with respect to any out of pocket expenses incurred. The Optionee shall have failed the right to assume promptly after notice of participate in the institution of such action the negotiation, settlement or defense of such action or retain counsel reasonably satisfactory to any Tax Matter at its own expense. To the Indemnified Party. After such notice from extent that it would impact the indemnifying party to such Indemnified PartyOptionee, the indemnifying party will Representing Person or the Founders shall not be liable for the costs and expenses settle, compromise or dispose of any settlement of such action effected by such Indemnified Party Tax Matter without the consent of the indemnifying partyOptionee, which consent shall not be unreasonably withheld or delayed.
(iii) The Indemnified Party withheld. Notwithstanding anything to the contrary in this Agreement, after the Acquisition Effective Time, any Tax Matter shall be kept fully informed governed by Section 10.2(f) of the indemnifying party of such action, suit, or proceeding at all stages thereof, whether or not it is represented by counsel. The indemnifying party shall, at the indemnifying party's expense, make available to the Indemnified Party and its attorneys and accountants all books and records of the indemnifying party relating to such proceedings or litigation, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such action, suit, or proceedingSecurities Purchase Agreement.
(iv) The indemnifying party shall, without Indemnified Party's consent, make no settlement of any claims that the indemnifying party has undertaken to defend unless the indemnifying party fully indemnifies the Indemnified Party for all Losses, there is no finding or admission of violation of law by, or effect on any other claims that may be made against the Indemnified Party and the relief granted in connection therewith requires no action on the part of and has no effect on the Indemnified Party. However, in the event the indemnifying party shall not offer reasonable assurances as to its financial capacity to satisfy any final judgment or [ILLEGIBLE] and dispose of the claim after 30 days prior written notice to the indemnifying party.
Appears in 1 contract
Samples: Option Purchase Agreement (Charlotte's Web Holdings, Inc.)
Terms and Conditions of Indemnification. 18.2.1 The respective obligations and liabilities of the Company and Stone Charterhouse (each, an "indemnifying party") to indemnify pursuant to this Paragraph 11 Section 18 shall be subject to the following terms and conditions:
(ia) The party seeking to be indemnified (the "Indemnified Party") shall give the indemnifying party prompt written notice of any such claim. The Indemnified Party's failure to give prompt notice, however, shall not serve to eliminate or limit the Indemnified Party's right to indemnification hereunder except to the extent such failure materially prejudices the rights of the indemnifying party.
(iib) Promptly after receipt by an Indemnified Party The obligations and liabilities of notice of the commencement of such action, suit, or proceeding for which such Indemnified Party is entitled to indemnification under this Paragraph 11, such Indemnified Party will notify the indemnifying party to indemnify pursuant to this Section 18 in respect of any Claim by a third party shall be subject to the commencement thereof in writing; but following additional terms and conditions:
(i) The indemnifying party shall have the failure right to so notify undertake, by counsel or other representatives of its own choosing reasonably satisfactory to the Indemnified Party, the defense, compromise, and settlement of such Claim.
(ii) In the event that the indemnifying party shall elect not to undertake such defense, or within a reasonable time after notice of any such claim from the Indemnified Party shall fail to defend, the Indemnified Party (i) will not relieve it from any liability under paragraphs (a) or (b) above except upon further written notice to the extent indemnifying party) shall have the right to undertake the defense, compromise or settlement of such indemnifying party has been materially prejudiced claim, by such failure (includingcounsel or other representatives of its own choosing, without limitation, that such failure results in on behalf of and for the forfeiture by account and risk of the indemnifying party of substantial rights party.
18.2.2 Notwithstanding anything in this Section 18 to the contrary, (A) if there is a reasonable probability that a Claim may materially and defenses) and (ii) will not, in any event, relieve adversely affect the indemnifying party from any obligations to any Indemnified Party other than as a result of money damages or other money payments, the indemnification obligation provided in Subparagraphs 11(a) and (b) above. In case any such action is brought against any Indemnified Party shall have the right, at the cost and it notifies expense of the indemnifying party party, to participate in the defense, compromise or settlement of the commencement thereofClaim, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party; provided, however, that if (AB) the indemnifying party has failed shall not, without the Indemnified Party's written consent, settle or compromise any Claim or consent to assume entry of any judgment which does not include as an unconditional term thereof the giving by the claiming party or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim, and (C) in the event that the indemnifying party undertakes defense thereof and employ such of any Claim, the Indemnified Party by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the indemnifying party and its counsel or other representatives concerning such claim (Bother than any claim for money damages with respect to which the indemnifying party has agreed to indemnify the Indemnified Party) the named parties to any such action (including any impleaded parties) include both and the indemnifying party and the Indemnified Party and the indemnifying party and the Indemnified Party their respective counsel or other representatives shall have been advised by counsel that representation of such indemnifying party and such Indemnified Party by the same counsel would be inappropriate under applicable standards of professional conduct due to differing interests between them, then, in each such case, the indemnifying party shall not have the right to direct the defense of such action on behalf of such Indemnified Party or parties and such Indemnified Party or parties shall have the right to select separate counsel to defend such action on behalf of such Indemnified Party of its election so to assume the defense thereof and the reasonable approval by such Indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable cooperate with respect to such Indemnified Party under this Paragraph 11 for any legal or other expensesclaim, other than reasonable costs of investigation, subsequently incurred by such Indemnified Party in connection with the defense thereof, unless (A) the Indemnified Party shall have employed separate counsel in accordance with the proviso subject to the immediately preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not be liable for the expenses execution and delivery of more than one separate counsel (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by the Indemnified Parties, (B) the indemnifying party has authorized in writing the employment of counsel for the Indemnified Party at the expense of the indemnifying party or (C) the indemnifying party shall have failed to assume promptly after notice of the institution of such action the a mutually satisfactory joint defense of such action or retain counsel reasonably satisfactory to the Indemnified Party. After such notice from the indemnifying party to such Indemnified Party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action effected by such Indemnified Party without the consent of the indemnifying party, which consent shall not be unreasonably withheld or delayedagreement.
(iii) The Indemnified Party shall be kept fully informed by the indemnifying party of such action, suit, or proceeding at all stages thereof, whether or not it is represented by counsel. The indemnifying party shall, at the indemnifying party's expense, make available to the Indemnified Party and its attorneys and accountants all books and records of the indemnifying party relating to such proceedings or litigation, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such action, suit, or proceeding.
(iv) The indemnifying party shall, without Indemnified Party's consent, make no settlement of any claims that the indemnifying party has undertaken to defend unless the indemnifying party fully indemnifies the Indemnified Party for all Losses, there is no finding or admission of violation of law by, or effect on any other claims that may be made against the Indemnified Party and the relief granted in connection therewith requires no action on the part of and has no effect on the Indemnified Party. However, in the event the indemnifying party shall not offer reasonable assurances as to its financial capacity to satisfy any final judgment or [ILLEGIBLE] and dispose of the claim after 30 days prior written notice to the indemnifying party.
Appears in 1 contract
