Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of the Indemnified Party against such Third-Party Claim. (b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability. (c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurer. (d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees. (e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 5 contracts
Samples: Purchase and Assumption Agreement (First Niagara Financial Group Inc), Purchase and Assumption Agreement (Financial Institutions Inc), Assignment, Purchase and Assumption Agreement (Financial Institutions Inc)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) thirty days following such Indemnified Party’s receipt of a Third-Third Party Claim, notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall not affect the rights of an Indemnified Party hereunder only except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party shall have thirty (30) 15 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim; provided, however, that the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third Party Claim and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (ii) the Third Party Claim seeks injunctive or equitable relief against the Indemnified Party, (iii) the Indemnifying Party has failed to defend or is failing to defend in good faith the Third Party Claim, (iv) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (v) in the case of a Buyer Indemnified Party, it is reasonably likely that the Losses arising from such Third Party Claim will exceed the amount such Buyer Indemnified Party will be entitled to recover as a result of the limitations set forth in Section 7.2(b); provided, further, that prior to assuming control of such defense, the Indemnifying Party must acknowledge that it would have an indemnity obligation for any Losses resulting from such Third Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party ClaimClaim and subject to Section 7.4(a), the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Subject to Section 7.4(a), the Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themexpense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; provided, however, that no such prior written consent of Claim unless (i) the Indemnifying Party shall have agreed to indemnify and hold the Indemnified Party harmless from and against any and all Losses caused by or arising out of any such settlement or compromise, (ii) such settlement or compromise shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes include as an unconditional term thereof the granting giving by the person asserting such claim or bringing such action claimant of an unconditional a release of the Indemnified Party, reasonably satisfactory to the Indemnified Party, from liability to all Indemnified Parties Liability with respect to such claim Third Party Claim and does (iii) such settlement or compromise would not include result in (A) the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any of its Affiliates, (B) a finding or admission of culpabilitya violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (C) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates, or (D) any monetary liability of the Indemnified Party that will not be promptly paid or reimbursed by the Indemnifying Party.
(c) If the Indemnifying Party (i) is not entitled to defend a Third Party Claim, (ii) elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwiseotherwise or (iii) after assuming the defense of a Third Party Claim, fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim. The Indemnified Party shall not settle a Third-Third Party Claim for which the Indemnifying Party shall have monetary liability hereunder without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 5 contracts
Samples: Asset Purchase Agreement (Adelphia Communications Corp), Asset Purchase Agreement (Adelphia Communications Corp), Asset Purchase Agreement (Time Warner Inc)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any indemnified party (an “Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), Party”) hereunder is asserted against or sought to be collected from any Indemnified Party by a third party Person (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) 30 days following such Indemnified Party’s receipt of a Third-Third Party Claim, notify the Indemnifying Party Party, as applicable, in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto Claim (a “Claim Notice”); provided, however, that the failure to timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that if such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. Notice under this Section 4.3 shall be provided in accordance with Section 6.5. The Indemnifying Party shall have thirty (30) 20 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party Party, as applicable, that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim. For the avoidance of doubt, knowledge of a Third Party Claim by a Person who is an officer or director of both Capital Southwest and CSWI shall not constitute notice for purposes of this Section 4.3.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party Party, as the case may be, shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expensedefense. Once the Indemnifying Party Party, as the case may be, has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate Party’s participation in any such defense shall be at its own expense unless (i) representation of the Indemnified Party’s interests by the Indemnifying Party’s counsel would involve an actual conflict of interest or (ii) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party, as the case may be, has failed to diligently pursue a Third Party Claim it has assumed, as provided in the first sentence of Section 4.3(c), in which case the Indemnifying Party and shall pay the expenses of the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of Party’s counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; providedClaim on a basis that would result in (A) the imposition of a consent Order that would restrict the future activity or conduct of the other party or any of its Affiliates, however(B) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (C) a finding or admission that no such prior written consent would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates, or (D) any monetary liability of the Indemnified Party shall that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party. The Indemnified Party shall cooperate in the defense of any Third Party Claim, includes including by providing access to such personnel, support and relevant business records and other documents, as an unconditional term thereof the granting may be reasonably requested by the person asserting Indemnifying Party in connection with such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilitydefense.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwiseotherwise or (ii) after assuming the defense of a Third Party Claim, fails to use its reasonable best efforts to defend diligently such Third Party Claim within 10 Business Days after receiving written notice from the Indemnified Party to the effect that Indemnifying Party, as the case may be, has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim. The Indemnified Indemnifying Party shall not settle a Third-Party Claim not, without the prior written consent of the Indemnifying other party, settle, compromise or offer to settle or compromise any Third Party and/or its respective insurer.
Claim on a basis that would result in (dA) The the imposition of a consent Order that would restrict the future activity or conduct of the Indemnified Party and or any of its Affiliates, (B) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (C) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates, or (D) any monetary liability of the Indemnified Party that will not be promptly paid or reimbursed by the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employeesParty.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 4 contracts
Samples: Distribution Agreement (Capital Southwest Corp), Distribution Agreement (CSW Industrials, Inc.), Distribution Agreement (CSW Industrials, Inc.)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) thirty days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a timely Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) 30 days (or such lesser less number of days set forth in the Claim Notice as may be required by court proceeding Legal Proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings Legal Proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnifying Party shall defend such Third-Party Claim and the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall may participate in any such defense at its expense; provided, however, that such Indemnified Party shall be entitled to participate in any such defense with separate counsel at the reasonable expense unless of the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and if (i) the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them, or (ii) the Indemnified Party assumes the defense of a Third-Party Claim after the Indemnifying Party has failed to diligently pursue a Third-Party Claim it has assumed, as provided in the first sentence of Section 7.5(c). The Indemnifying Party shall not, without the prior written consent of the Indemnified PartyParty (such consent not to be unreasonably withheld or delayed), settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent Order, however, injunction or decree that no such prior written consent would materially restrict the future activity or conduct of the Indemnified Party shall or any of its Affiliates, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (iii) a finding or admission that would have a Material Adverse Effect on other claims made or threatened against the Indemnified Party or any of its Affiliates or (iv) any monetary liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof and, in connection with any of the granting by foregoing, the person asserting Indemnified Party alone shall be entitled to contest, defend, compromise and settle such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityThird-Party Claim in the first instance.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, (ii) is not entitled to defend the Third-Party Claim as a result of the Indemnified Party’s election to defend the Third-Party Claim as provided in Section 7.5(b) or (iii) after assuming the defense of a Third-Party Claim, fails to take reasonable steps necessary to defend diligently such Third-Party Claim within ten days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld or delayed.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees; it being understood that the costs and expenses of the Indemnified Party relating thereto shall be Losses.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 3 contracts
Samples: Master Investment Agreement (Vantiv, Inc.), Master Investment Agreement (Fifth Third Bancorp), Master Investment Agreement (Fifth Third Bancorp)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Third Party Claim, notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) calendar days (or such lesser number of days set forth in the Claim Notice as may be required by a court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall or any of its Affiliates, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, or (iii) any monetary liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim. The Indemnified Party shall not settle a Third-Third Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Third Party Claim, including by providing access to each other’s relevant business records and other documents, and employees; it being understood that the costs and expenses of the Indemnified Party relating thereto shall be Losses for purposes of Section 7.2 or Section 7.3, as the case may be.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Lawapplicable Laws), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 3 contracts
Samples: Share Purchase Agreement (C&F International Holdings LTD), Share Purchase Agreement (C&F International Holdings LTD), Share Purchase Agreement (Right Advance Management Ltd.)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), Section 5.15) is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, promptly notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party shall have thirty (30) 30 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim with counsel approved by the Indemnified Party (which approval may not be unreasonably withheld, delayed or conditioned); it being understood that by assuming the defense of a Third Party Claim the Indemnifying Party shall conclusively acknowledge its obligation to indemnify the Indemnified Party with respect to all matters in such Third Party Claim, other than to the extent of any Losses caused by the bad faith act, willful misconduct, gross negligence or violation of the terms of this Agreement by the Indemnified Party.
(b) In the event that the Indemnifying Party notifies in writing the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense defense, with counsel satisfactory to the Indemnified Party (which approval may not be unreasonably withheld, delayed or conditioned) at its the Indemnifying Party’s expense. Once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosingchoosing at such Indemnified Party’s expense. The Indemnified Party shall participate in any such defense at its expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice opinion of its outside counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential reasonably likely differing material interests between themthem or (ii) as provided in the first sentence of Section 8.4(c). The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall or any of its Affiliates, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (iii) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates or (iv) any monetary liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely written notice of its desire to so defend or otherwiseotherwise or (ii) after assuming the defense of a Third Party Claim, fails to take reasonable steps necessary to defend diligently such Third Party Claim within 10 days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim. The Indemnified Party shall not settle a Third-Third Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in all reasonable respects in order to ensure the proper and adequate defense of a Third-Third Party Claim, including by providing reasonable access to each other’s relevant business records and other documents, and employees; it being understood that the costs and expenses of the Indemnified Party relating thereto shall be Losses.
(e) The Indemnified Party and the Indemnifying Party shall keep each other fully informed concerning the status of such Third Party Claim and any related proceedings at all stages thereof.
(f) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 3 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (RR Donnelley & Sons Co), Stock Purchase Agreement (Visant Corp)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying a party (in such capacity, an “Indemnifying PartyPerson”) may have liability to any Indemnified Party Person hereunder, other than those relating to Taxes (which are the exclusive subject of Article XSection 6.6), is asserted against or sought to be collected from any Indemnified Party Person by a third party Third Party (a “Third-Party Claim”), such Indemnified Party Person shall promptly, but in no event more than ten (10) days following such Indemnified PartyPerson’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing Person of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim)ascertainable, any other remedy sought thereunder, any relevant time constraints relating thereto andthereto, a reasonably detailed explanation of the events giving rise to the extent practicable, such Third-Party Claim and any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure to timely to give a Claim Notice shall affect not relieve the rights Indemnifying Person of an Indemnified Party hereunder only its obligations hereunder, except to the extent that the Indemnifying Person shall have been actually prejudiced by such failure has a material prejudicial effect on or as provided in Section 8.1. Thereafter, the defenses or other rights available Indemnified Person shall deliver to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify Person, promptly following the Indemnified Party that it desires to assume the defense Person’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party against such Person relating to the Third-Party Claim.
(b) In the event that the Indemnifying Party Person notifies the Indemnified Party within the Notice Period Person that it desires elects to defend the Indemnified Party Person against a Third-Party Claim, the Indemnifying Party Person shall have the right to defend the Indemnified Party Person by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party Person has duly assumed made such election, the Indemnified Person shall have the right to participate in (but not control) any such defense and to employ separate counsel of its choosing at such Indemnified Person’s expense. Whether or not the Indemnifying Person assumes the defense of a Third-Party Claim, the Indemnified Party Person shall have the right, but not the obligation, to participate in admit any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Partyliability with respect to, settle, compromise or offer to settle or compromise any discharge, such Third-Party Claim; provided, however, that no such Claim without the Indemnifying Person’s prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) consent. If the Indemnifying Person assumes the defense of a Third-Party elects not to defend the Indemnified Party against a Claim and is in good faith contesting such Third-Party Claim, whether by not giving the Indemnified Party timely notice Person shall agree to any settlement, compromise or discharge of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim that the Indemnifying Person may reasonably recommend and the terms of which provide that (i) there is no finding or admission of any violation of Law or Contract by the Indemnified Person, and (ii) the sole relief provided to the Third Party is monetary damages that are paid in full by (A) insurance, or (B) the Indemnifying Person to the extent that the Indemnifying Person is liable (i.e., after application of the applicable limitations in Article 8) in connection with such Third-Party Claim. If the immediately preceding clauses (i) and (ii) are satisfied, then the Indemnified Person shall not be adversely affected by assuming agree to and cooperate fully with the defense Indemnifying Person in connection with such settlement or compromise of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurer.
(dc) The Indemnified Party Person and the Indemnifying Party Person shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing reasonable access to each other’s relevant business books and records, by preserving such books and records and other documents, by making employees and employees.
(e) representatives available on a mutually convenient basis during normal business hours to provide additional information and explanation of any material provided hereunder. The Indemnified Party Person and the Indemnifying Party Person shall use reasonable best commercial efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Diego Pellicer Worldwide, Inc), Equity Purchase Agreement (Siyata Mobile Inc.)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) Party may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (other than those relating to Taxes, which are the subject of Section 7.8) (a “Third-Party Claim”), ) such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the party or parties from whom indemnification is sought (collectively, the “Indemnifying Party Party”) in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided. However, however, that the failure timely to give a Claim Notice shall prompt notice will not affect the rights or obligations of an Indemnified the Indemnifying Party hereunder except and only to the extent that that, as a result of such failure has a material prejudicial effect on the defenses or other rights available to failure, the Indemnifying Party with respect to such Third-Party Claimwas prejudiced. The Indemnifying Party shall have thirty (30) 15 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding proceedings in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim. For purposes of this Article X, any existing or future claims related to the Retained Liabilities shall be subject to the same procedures as Third-Party Claims.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ a single separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of outside counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them, in which case the Indemnified Party shall participate in such defense and employ separate counsel at the Indemnifying Party’s expense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall be required to or any proposed settlement that involves only of its Affiliates or (ii) a finding or admission of a violation of Law or violation of the payment rights of money any Person by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim Indemnified Party or bringing such action any of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityits Affiliates.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right right, but not the obligation obligation, to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld or delayed.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use commercially reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges. For the avoidance of doubt, nothing in this Section 10.5 shall be construed as a waiver by an Indemnified Party or an Indemnifying Party of any privilege, including any privilege associated with separate counsel as described herein.
Appears in 2 contracts
Samples: Contribution Agreement (Spectra Energy Partners, LP), Contribution Agreement
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying a party (in such capacity, an “Indemnifying PartyPerson”) may have liability to any Indemnified Party Person hereunder, other than those relating to Taxes (which are the exclusive subject of Article XSection 6.9), is asserted against or sought to be collected from any Indemnified Party Person by a third party (a “Third-Party Claim”), such Indemnified Party Person shall promptly, promptly (but in no any event more than within ten (10) days days) following such Indemnified PartyPerson’s receipt of a Third-Party Claim, notify the Indemnifying Party Person in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim)ascertainable, any other remedy sought thereunder, any relevant time constraints relating thereto andthereto, and a reasonably detailed explanation of the events giving rise to the extent practicable, such Third-Party Claim and any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure to timely to give a Claim Notice shall affect not relieve the rights Indemnifying Person of an Indemnified Party hereunder only its obligations hereunder, except to the extent that the Indemnifying Person shall have been actually and materially prejudiced by such failure has a material prejudicial effect on or as provided in Section 8.1. Thereafter, the defenses or other rights available Indemnified Person shall deliver to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify Person, promptly following the Indemnified Party that it desires to assume the defense Person’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party against such Person relating to the Third-Party Claim.
(b) In the event that the Indemnifying Party Person notifies the Indemnified Party within the Notice Period Person that it desires elects to defend the Indemnified Person against a Third-Party against Claim within thirty (30) days following the receipt of notice from the Indemnified Person of a Third-Party Claim, the Indemnifying Party Person shall have the right to defend the Indemnified Third-Party Claim which relates to any Losses indemnifiable hereunder by appropriate proceedings and with counsel reasonably acceptable to the Indemnified Person and shall have the sole power to direct and control such defense at its expense, subject to the Indemnifying Person’s (x) acknowledging its indemnity obligation hereunder and undertaking to indemnify and hold the Indemnified Person harmless from, against and in respect of, and to pay to such Indemnified Person the full amount of any Losses arising out of, relating to or resulting therefrom, and (y) providing the Indemnified Person with evidence reasonably acceptable to the Indemnified Person that the Indemnifying Person will have the financial resources to defend against such Third-Party Claim and to fulfill its indemnification obligations hereunder. Notwithstanding the foregoing, the Indemnifying Person shall not have the right to assume the conduct and control of such defense if the Third-Party Claim which the Indemnifying Person seeks to assume control (i) seeks monetary relief in excess of the purchase price actually paid hereunder or any non-monetary relief (including an injunction or other equitable relief), (ii) is reasonably likely to result in Losses which will exceed the amount such Indemnified Person will be entitled to recover as a result of the limitations set forth in this Article 8, (iii) involves criminal allegations, (iv) involves a claim that, in the good faith judgment of the Indemnified Person, the Indemnifying Person failed or is failing to reasonably prosecute or defend, (v) relates to Taxes, (vi) involves a claim by a Governmental Authority or (vii) relates to Buyer Parent’s (or any of its Affiliate’s) financial statements or Buyer Parent’s reporting obligations under the Securities Act and the Exchange Act, including any derivative Action by the shareholders of Buyer Parent. Once the Indemnifying Party Person has duly assumed the defense of a Third-Party Claimmade such election, the Indemnified Party Person shall have the right, but not the obligation, right to participate in (but not control) any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any ; provided, however, that such defense separate counsel at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, Person’s own expense (unless based on the written advice of counselcounsel to the applicable Indemnified Person, a material legal conflict exists between the applicable Indemnified Person and the Indemnifying Person that would make such separate representation necessary, in which case the Indemnifying Person will bear such expense, subject to the limitations set forth herein). If the Indemnifying Person does not (or is not permitted to) elect to conduct or control the defense of any Third-Party Claim which relates to any Losses indemnifiable hereunder, the applicable Indemnified Person may conduct and control the defense of such Third-Party Claim; provided, that representation the Indemnified Person shall not settle, offer to settle or compromise such Third-Party Claim without the prior written consent of both parties by the same counsel would Indemnifying Person (such consent not to be inappropriate due to actual unreasonably withheld, delayed or potential differing material interests between them. The conditioned).
(c) If the Indemnifying Person assumes the defense of a Third-Party Claim, the Indemnifying Person shall not, without the prior written consent (such consent not to be unreasonably withheld, delayed or conditioned, it being understood that withholding, delaying and/or conditioning consent to any settlement or compromise that involves anything other than payment of monetary damages shall be deemed to be reasonable per se) of the Indemnified PartyPerson, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, howeverthat, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by if the Indemnifying Party, includes as an unconditional term thereof Person assumes the granting by the person asserting defense of a Third-Party Claim and is in good faith contesting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice Person’s consent is not required for any settlement, compromise or discharge of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected that the Indemnifying Person may reasonably recommend and that by assuming its terms (i) obligates the defense Indemnifying Person to pay the full amount of Losses in connection with such Third-Party Claim. The , (ii) does not require any payment or other action by any Indemnified Party shall not settle a Person or the admission of any wrongdoing or misconduct by any Indemnified Person, and (iii) fully and irrevocably releases all Indemnified Persons in connection with such Third-Party Claim without the consent of the Indemnifying Party and/or and does not impose any injunctive or other equitable relief against any Indemnified Person or its respective insurerAffiliate.
(d) The Indemnified Party Person and the Indemnifying Party Person shall reasonably cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing reasonable access to each other’s relevant business books and records, and appropriate personnel. Such cooperation shall include the retention and (upon the Indemnifying Person’s request and sole expense) the provision to the Indemnifying Person of books and records and other documentsinformation that are reasonably relevant to such Third-Party Claim, and employees.
(e) appropriate personnel available on a mutually convenient basis during normal business hours to provide additional information and explanation of any material provided hereunder. The Indemnified Party Person and the Indemnifying Party Person shall use reasonable best commercial efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cooperate with the other party to minimize the extent of such disclosure and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privilegesprivileges (which may include redacting or withholding information as reasonably appropriate).
Appears in 2 contracts
Samples: Unit Purchase Agreement (LendingTree, Inc.), Unit Purchase Agreement (LendingTree, Inc.)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article XSection 6.8), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten fifteen (1015) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty as promptly as practicable (30and in any event within fifteen (15) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter)) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless (i) the Indemnifying Party requests the Indemnified Party to participate or (ii) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings (including any impleaded parties) and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that there may be one or more legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party or that representation of both parties by the same counsel would be inappropriate inadvisable due to an actual or potential differing material interests between themconflict. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party ClaimClaim or permit a default or consent to entry of any judgment; provided, however, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerinsurer if any amount is required to be paid by the Indemnifying Party in respect of such Third-Party Claim or if the Indemnifying Party is contesting the Third-Party Claim in good faith (other than a situation where the Indemnifying Party has elected not to defend against a Third-Party Claim as described in the first sentence of this section).
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, documents and employeesemployees in a manner consistent with Section 6.1(b).
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 2 contracts
Samples: Purchase and Assumption Agreement (Capital One Financial Corp), Purchase and Assumption Agreement (HSBC Finance Corp)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or threatened against, or sought to be collected from from, any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Third Party Claim, notify provide written notice to the Indemnifying Party in writing of such Third-Third Party Claim, which notice shall specify, in good faith, on a non-binding basis, (i) the provisions under this Agreement on which such claim by the Indemnified Party is based, (ii) the amount or the estimated amount of damages sought thereunder (to the extent then ascertainable (which estimate shall not be conclusive of the final amount of in good faith) in connection with such Third-Third Party Claim), (iii) any other remedy sought thereundersought, in connection with such Third Party Claim, and (iv) such other information as is believed in good faith to be necessary to enable the Indemnifying Party to assess the merits of the claim, to act to preserve evidence and to make such provision as the Indemnifying Party may consider necessary (including details of the legal and factual basis of the claim, the evidence on which the Indemnified Party relies, any relevant time constraints relating thereto and, to the extent practicable, such claim and any other material details pertaining thereto to such claim) (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice such notification shall not affect the rights of an Indemnified Party hereunder only indemnification provided hereunder, except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to has been prejudiced as a result of such Third-Party Claimfailure. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim; provided, that, notwithstanding the foregoing, the Indemnifying Party will not be entitled to control, and the Indemnified Party will be entitled to have control over, the defense or settlement of any Third Party Claim (and the reasonable cost of such defense and any Losses with respect to such Third Party Claim shall constitute an amount for which the Indemnified Party is entitled to indemnification hereunder) if (1) the Third Party Claim involves a criminal proceeding, action, indictment, allegation or investigation; (2) if the Third Party Claim seeks injunctive relief; (3) the Third Party Claim would reasonably result in suspension or debarment of Buyer by a Governmental Entity; (4) any insurer, including the Insurer under the R&W Insurance Policy, requires, as a condition to an Indemnified Party’s eligibility to recover insurance proceeds on account of such Third Party Claim, that such insurer control the matter; (5) the Indemnifying Party is not reasonably, diligently or in good faith conducting a defense of the Third Party Claim (and the Indemnifying Party is provided written notice thereof by Buyer and the Indemnifying Party does not cure such action or inaction within ten (10) Business Days); or (6) the Indemnified Party has been advised in writing by legal counsel that a conflict of interest exists which, under applicable principles of legal ethics, would prohibit a single legal counsel from representing both the Indemnified Party and the Indemnifying Party in such Third Party Claim. The Indemnified Party shall reasonably cooperate with and assist the Indemnifying Party in determining the validity of any claim for indemnification by the Indemnified Party, and the Indemnifying Party shall have the right at any time to revoke its determination that it will defend the Indemnified Party if it determines that indemnification is not required.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, (i) the Indemnifying Party shall select counsel reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expensedefense. Once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense choosing at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themown cost. The Indemnifying Party shall nothave the right to settle, compromise or offer to compromise any Third Party Claim, without the prior written consent of the Indemnified PartyParty (not to be unreasonably, settlewithheld, conditioned or delayed) only if settled solely by the payment of monetary damages and the granting of releases, and provided, that the settlement, compromise or offer to settle or compromise any Third-Party Claim; providedwould not result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would materially restrict the future activity or conduct of the Indemnified Party shall be required to or any proposed settlement that involves only the payment of money its Affiliates, (ii) a finding or admission of a material violation of Law by the Indemnifying PartyIndemnified Party or any of its Affiliates, includes as or (iii) a finding or admission that would have an unconditional term thereof adverse effect in any material respect on other claims made or threatened against the granting by the person asserting such claim Indemnified Party or bringing such action any of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityits Affiliates.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwiseotherwise in writing, or if the Indemnifying Party does not have the right to so defend, the Indemnified Party shall have the right but not the obligation to assume its own defensedefense or settle such Third Party Claim and shall consult with the Indemnifying Party regarding the strategy for defense or settlement of such claim, including with respect to the Indemnified Party’s choice of legal counsel; it being understood that the Indemnified Party’s right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim. The With respect to any such Third Party Claim, if the Indemnifying Party agrees that the Third Party Claim is within the scope of its obligations hereunder and agrees to hold the Indemnified Party harmless from and against the amount of any Losses resulting therefrom, subject to the limitations set forth in Section 7.2(b) and the other terms and conditions of this Agreement, then the Indemnified Party shall obtain the Indemnifying Party’s consent prior to any settlement (such consent not settle a Third-to be unreasonably conditioned, withheld or delayed by the Indemnifying Party); provided, however, if the Indemnified Party elects to proceed with the defense (including settlement or compromise) of such Third Party Claim without the consent on its own, any settlement or compromise shall not be conclusive evidence of the Indemnifying amount of Losses incurred by the Indemnified Party and/or its respective insurerin connection with such Third Party Claim.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Third Party Claim, including by providing access to each other’s relevant business records and other documents, documents and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(f) The Indemnified Party shall bear all of its legal fees, costs and expenses arising out of or in connection with Third Party Claims unless such expenses are Indemnifiable Legal Fees and Expenses.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Science Applications International Corp), Asset Purchase Agreement (Unisys Corp)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Any Indemnified Party shall promptlygive written notice as promptly as is reasonably practicable to the Indemnifying Party of the assertion of any Claim or Proceeding, but by any Person not a Party in respect of which indemnity intends to be sought under this Agreement; provided that the failure of the Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations under this Section 12.6 except to the extent (if any) that the Indemnifying Party shall have been prejudiced thereby. Following receipt of a written notice from the Indemnified Party pursuant to this Section 12.6, the Indemnified Party shall permit the Indemnifying Party, at the Indemnifying Party’s election, to assume, at its own expense, the defense of any such Claim or Proceeding with counsel selected by the Indemnifying Party and not reasonably objected to by the Indemnified Party. The Indemnified Party shall not settle, compromise or consent to any judgment in respect of any such Claim or Proceeding without the prior written Consent of the Indemnifying Party, which Consent shall not be unreasonably withheld, delayed or conditioned.
(b) Following the Indemnifying Party’s election to assume the defense of any Claim, action or Proceeding pursuant to Section 12.6(a), (i) the Indemnified Party shall deliver to the Indemnifying Party, in a timely fashion (which shall be no event more later than ten (10) days following such Business Days after the Indemnified Party’s receipt of a Third-written notice of such election), copies of all notices and documents (including court papers) received by the Indemnified Party Claim, notify relating to such Claim or Proceeding and (ii) the Indemnified Party shall cooperate in the defense or prosecution thereof as reasonably requested by the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive context of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to Claim or Proceeding. Such cooperation shall include the extent practicable, any other material details pertaining thereto retaining and (a “Claim Notice”); provided, however, that upon the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available Indemnifying Party’s request) providing to the Indemnifying Party with respect of records and information that are reasonably relevant to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (Claim or such lesser Proceeding, and making a reasonable number of days set forth in the Claim Notice as may be required by court proceeding in the event of employees reasonably available on a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligationmutually convenient basis, to participate in provide additional information and explanation of any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityprovided hereunder.
(c) If the Indemnifying Party elects not assumes the defense of any Claim or Proceeding pursuant to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwiseSection 12.6(a), the Indemnified Party shall have the right (but not the obligation duty) to assume participate in such defense and to employ counsel, at its own defenseexpense, separate from the counsel employed by the Indemnifying Party; it being understood provided, however, that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurershall control such defense.
(d) The If the Indemnifying Party does not elect to assume defense of a Claim or Proceeding pursuant to Section 12.6(a), the Indemnifying Party may nevertheless participate (but not control) and employ its own counsel not reasonably objected to by the Indemnified Party, at the Indemnifying Party’s expense, in the defense of such Claim or Proceeding.
(e) Each Party agrees to use its commercially reasonable efforts to cooperate and cause its employees and other Representatives to cooperate with and assist the Indemnifying Party and each Indemnified Party in connection with defending any third-party Claim, Proceeding or Liability for which indemnity is sought hereunder, including, but not limited to Claims and Proceedings with respect to which an Indemnifying Party has elected to assume or participate in the defense, including using commercially reasonable efforts to mitigate any such Claim, Proceeding or Liability for which indemnity is sought hereunder.
(f) Subject to Sections 12.1(b), 12.2(b), 12.3, 12.4 and 12.5, the Indemnifying Party may, without the prior written Consent of the Indemnified Party, settle or compromise or consent to the entry of any judgment with respect to a Claim or any litigation resulting therefrom which is the subject of Section 12.6 if such settlement, compromise or consent (i) includes an unconditional release of all the Indemnified Parties from all Liability arising out of or related to such action or the subject matter thereof, (ii) includes no admission of fault or culpability by or on behalf of any Indemnified Party or its businesses, and (iii) provides for settlement or relief solely in the form of monetary damages to be paid fully by the Indemnifying Party. Any other type of settlement or compromise or consent to the entry of any judgment shall not be undertaken by the Indemnifying Party without obtaining the prior written Consent of the Indemnified Party to its terms, which Consent shall not be unreasonably withheld, delayed or conditioned; provided, however, that if the Indemnified Party shall have given such Consent, the Indemnified Party agrees that it shall, and shall cause its Affiliates to, submit to any non-monetary relief of judgment arising out of or forming part of any such settlement, compromise or Consent.
(g) With respect to any third-party Claim, action or Proceeding in relation to which an Indemnifying Party is required to indemnify an Indemnified Party pursuant to this Section 12.6 (an “Indemnified Claim”) that is combined or joined with one or more Claims, actions or Proceedings that are not Indemnified Claims or with respect to an Indemnified Claim for which both the Indemnified Party and the Indemnifying Party shall cooperate in order to ensure may be liable and the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The against which both the Indemnified Party and the Indemnifying Party desire to contest and control the defense, the right to control such defense shall rest with whichever of the Indemnified Party or the Indemnifying Party has the larger amount in dispute, and such Person in control may not settle or compromise any such Claim without the prior written Consent of the other Person, which Consent shall not be unreasonably withheld, delayed or conditioned; provided, however, that if an Indemnifying Party acknowledges in writing that it is obligated to indemnify an Indemnified Party with respect to any Indemnified Claim, the Indemnifying Party, and not the Indemnified Party, shall be deemed to have the amount of such Indemnified Claim in dispute.
(h) Whether or not the Indemnifying Party chooses to defend any Claim involving a third party, the Parties and their respective Affiliates (i) shall cooperate in the defense thereof and (ii) shall furnish such records, information and testimony, and attend such conferences, discovery Proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. With respect to any Claim subject to indemnification under this Section 12.6, the Parties and their respective Affiliates shall cooperate in such a manner as to preserve in full (to the extent possible) the confidentiality of all confidential information and the attorney-client and work-product privileges. In connection therewith, each Party agrees, on behalf of itself and its Affiliates, that: (A) it and its Affiliates shall use reasonable best efforts efforts, in respect of any Claim in which such Party has assumed or participated in the defense, to avoid production of confidential information (consistent with Applicable Lawapplicable Law and rules of procedure), and to cause (B) all communications among employeesbetween a Party or any of its Affiliates and counsel responsible for or participating in the defense of any Claim shall, counsel and others representing any party to a Third-Party Claim to the extent possible, be made so as to preserve any applicable attorney-client or work-product privilegesprivilege.
Appears in 2 contracts
Samples: Master Purchase Agreement (Beckman Coulter Inc), Master Purchase Agreement (Beckman Coulter Inc)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) Party may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), ) such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the party or parties from whom indemnification is sought (collectively, the “Indemnifying Party Party”) in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided. However, however, that the failure timely to give a Claim Notice shall prompt notice will not affect the rights or obligations of an Indemnified the Indemnifying Party hereunder except and only to the extent that that, as a result of such failure has a material prejudicial effect on the defenses or other rights available to failure, the Indemnifying Party with respect to such Third-Party Claimwas prejudiced. The Indemnifying Party shall have thirty (30) 15 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding proceedings in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ a single separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of outside counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them, in which case the Indemnified Party shall participate in such defense and employ separate counsel at the Indemnifying Party’s expense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall be required to or any proposed settlement that involves only of its Affiliates or (ii) a finding or admission of a violation of Law or violation of the payment rights of money any Person by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim Indemnified Party or bringing such action any of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityits Affiliates.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right right, but not the obligation obligation, to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld or delayed.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Any claim by an Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to for indemnification under this Agreement that does not result from a Third-Party Claim (a “Direct Claim”) will be asserted by giving the Indemnifying Party written notice as promptly as reasonably practicable. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of damages that has been or may be sustained by the Indemnified Party. The Indemnifying Party will have a period of fifteen (15) Business Days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such fifteen (15) Business Day period, the Indemnifying Party will be made so deemed to have rejected such claim, in which event the Indemnified Party will be free to pursue such remedies as may be available to preserve any applicable attorney-client or work-product privilegesthe Indemnified Party on the terms and subject to the provisions of this Agreement.
Appears in 2 contracts
Samples: Exchange and Redemption Agreement, Exchange and Redemption Agreement (Spectra Energy Partners, LP)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party Seller (an the “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Third Party Claim, notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect an adverse impact on the defenses or other rights or remedies available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party shall have thirty fifteen (3015) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-the applicable Third Party Claim, the Indemnifying Party shall shall, at its expense, have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expensedefense, with counsel reasonably satisfactory to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third-Third Party ClaimClaim in accordance with this Section 9.3, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosingchoosing at its own cost. The Indemnified Party shall participate in any such defense at its own expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, received an opinion from external legal counsel that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themconflict of interest or (ii) the Indemnified Party assumes the defense of a Third Party Claim as a result of the Indemnifying Party failing to comply with its express obligations under this Agreement applicable to the pursuit of such Third Party Claim following its election to assume the defense of such claim. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall or any of its Affiliates, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (iii) any monetary liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim Party or bringing such action (iv) any material non-monetary condition or obligation being imposed on any Indemnified Party or any of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityits Affiliates.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, (ii) is not entitled to defend the Indemnified Third Party shall have the right but not the obligation to assume its own defense; it being understood that Claim as a result of the Indemnified Party’s right election to indemnification for a Third-defend the Third Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurer.
(das provided in Section 9.3(a) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.or
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party Party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) 15 days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, provided that the failure timely to give a timely Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) 30 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding Legal Proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim; provided that in order to assume the defense of such Third-Party Claim, the Indemnifying Party in a writing signed by such Indemnifying Party agrees to be responsible for a substantial portion of such Losses relating to such Third-Party Claim and that the Indemnifying Party will provide indemnification to the Indemnified Party with respect to such substantial portion of the Losses relating to the Third Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings Legal Proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Indemnifying Party shall have the right, but not the obligation, to participate in any defend such defense and to employ separate counsel of its choosingThird-Party Claim. The Indemnified Party shall may participate in any such defense at its expense; provided that such Indemnified Party shall be entitled to participate in any such defense with separate counsel at the reasonable expense unless of the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that if (i) representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themthem or (ii) the Indemnified Party assumes the defense of a Third-Party Claim after the Indemnifying Party has failed to diligently pursue a Third-Party Claim it has assumed, as provided in the first sentence of Section 7.5(c). The Indemnifying Party shall not, without the prior written consent of the Indemnified PartyParty (such consent not to be unreasonably withheld or delayed), settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent Order, however, injunction or decree that no such prior written consent would materially restrict the future activity or conduct of the Indemnified Party shall or any of its Affiliates, (ii) a finding or admission of a violation of Law by the Indemnified Party or any of its Affiliates, (iii) a finding or admission that would have a Material Adverse Effect on other claims made or threatened against the Indemnified Party or any of its Affiliates or (iv) any monetary liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, (ii) is not entitled to defend the Third-Party Claim as a result of the Indemnified Party’s election to defend the Third-Party Claim as provided in Section 7.5(b) or (iii) after assuming the defense of a Third-Party Claim, fails to take reasonable steps necessary to defend diligently such Third-Party Claim within ten days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party ClaimClaim in such circumstance. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld or delayed.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 2 contracts
Samples: Merger Agreement (EVERTEC, Inc.), Merger Agreement (Popular Inc)
Third-Party Claim Indemnification Procedures. (a) In Except as provided in Section 8.2 with respect to Tax Contest Claims, in the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Third Party Claim, notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party shall have thirty (30) 90 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense defense, with counsel reasonably satisfactory to the Indemnified Party at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense choosing at its expense unless the Indemnifying Party own cost and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themexpense. The Indemnifying Party shall not, without the prior written consent of the Indemnified PartyParty (such consent not to be unreasonably withheld, delayed or conditioned), settle, compromise or offer to settle or compromise any Third-Third Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall or any of its Affiliates, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (iii) a finding or admission that would have an adverse effect to no more than a de minimis extent on other claims made or threatened against the Indemnified Party or any of its Affiliates, (iv) except to the extent within the De Minimis Amount, any monetary liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof Party or (v) any non-monetary condition or obligation being imposed on any Indemnified Party or any of its Affiliates that would restrict the granting by future activity or conduct of the person asserting such claim Indemnified Party or bringing such action any of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityits Affiliates.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; , it being understood that any right of the Indemnified Party’s right Party to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim. The Indemnified Indemnifying Party shall not settle have no liability with respect to a Third-Third Party Claim settled without the its consent, which consent of the Indemnifying Party and/or its respective insurershall not be unreasonably withheld or delayed.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Third Party Claim, including by providing access to each other’s relevant business records and other documents, documents and employees, it being understood that the costs and expenses of the Indemnified Party relating thereto shall be considered Losses. The Indemnified Party and the Indemnifying Party shall keep each other fully informed with respect to the status of such Third Party Claim.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(f) Each of Buyer Parent and Seller Parent hereby consents to the non-exclusive jurisdiction of any court in which a Third Party Claim is brought for purposes of any claim for indemnification or reimbursement with respect to such Third Party Claim or the matters alleged therein.
Appears in 2 contracts
Samples: Master Purchase Agreement (Allergan PLC), Master Purchase Agreement (Teva Pharmaceutical Industries LTD)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) Party may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (other than those relating to Taxes, which are the subject of Section 6.8) (a “Third-Party Claim”), ) such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the party or parties from whom indemnification is sought (collectively, the “Indemnifying Party Party”) in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided. However, however, that the failure timely to give a Claim Notice shall prompt notice will not affect the rights or obligations of an Indemnified the Indemnifying Party hereunder except and only to the extent that that, as a result of such failure has a material prejudicial effect on the defenses or other rights available to failure, the Indemnifying Party with respect to such Third-Party Claimwas prejudiced. The Indemnifying Party shall have thirty (30) 15 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding proceedings in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim. For purposes of this Article IX, any existing or future claims related to the Retained Liabilities or the Company-Related Indemnity Matters shall be subject to the same procedures as Third-Party Claims.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ a single separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of outside counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them, in which case the Indemnified Party shall participate in such defense and employ separate counsel at the Indemnifying Party’s expense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall be required to or any proposed settlement that involves only of its Affiliates or (ii) a finding or admission of a violation of Law or violation of the payment rights of money any Person by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim Indemnified Party or bringing such action any of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityits Affiliates.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right right, but not the obligation obligation, to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld or delayed.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use commercially reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges. For the avoidance of doubt, nothing in this Section 9.5 shall be construed as a waiver by an Indemnified Party or an Indemnifying Party of any privilege, including any privilege associated with separate counsel as described herein.
Appears in 2 contracts
Samples: Contribution Agreement (Spectra Energy Corp.), Contribution Agreement
Third-Party Claim Indemnification Procedures. Except as otherwise provided in Section 6.10(d):
(a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) Party may have liability (except with respect to any Seller Tax Contest or other liability with respect to Taxes) to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), ) such Indemnified Party shall promptly, but in no event more than ten promptly notify Buyer (10) days following such if the Indemnified Party is a Seller Indemnified Party’s receipt of ) or Seller (if the Indemnified Party is a Third-Party Claim, notify the Indemnifying Party Buyer Indemnified Party) in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided. However, however, that the failure timely to give a Claim Notice shall prompt notice will not affect the rights or obligations of an Indemnified the Indemnifying Party hereunder except and only to the extent that that, as a result of such failure has a material prejudicial effect on the defenses or other rights available to failure, the Indemnifying Party with respect to such Third-Party Claimwas prejudiced. The Indemnifying Party shall have thirty (30) 15 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding proceedings in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense; provided, that the Indemnifying Party shall have acknowledged in writing to the Indemnified Party its unqualified obligation to indemnify such Indemnified Party as provided hereunder with respect to such Third-Party Claim; provided further, however, that any counsel selected by the Indemnifying Party must be reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ a single separate counsel of its choosing, which counsel must be reasonably acceptable to the Indemnifying Party. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of outside counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them, in which case the Indemnified Party shall participate in such defense and employ separate counsel, which counsel must be reasonably acceptable to the Indemnifying Party, at the Indemnifying Party’s expense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim unless such settlement, however, that no such prior compromise or offer includes an unconditional written consent release of the Indemnified Party shall be required to any proposed settlement that involves only and would not materially and adversely affect the payment Indemnified Party other than as a result of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilitydamages.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by does not giving give the Indemnified Party timely notice of its desire to so defend against such Third-Party Claim or otherwisefails to diligently defend such Third-Party Claim, the Indemnified Party shall have the right right, but not the obligation obligation, to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim Claim, including indemnification for all costs and expenses associated with the Indemnified Party assuming its own defense, shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld, delayed or conditioned.
(d) Notwithstanding anything in this Section 9.5 to the contrary, no Indemnifying Party shall have the right to defend any Third-Party Claim (but may participate, at its own cost, in the defense of such claim) if such claim (i) seeks an injunction or other equitable remedies in respect of the Indemnified Party or its business, (ii) involves a plaintiff that is a material customer of the Company or that could reasonably be expected to result in a material adverse impact on the Indemnified Party’s relationship with one or more of such material customers, (iii) is a criminal claim or (iv) has a reasonable risk of resulting in a Loss that would exceed the monetary limitations set forth in Section 9.4(c), in which case the Indemnified Party may elect to assume the defense of such Third-Party Claim and such reasonable expenses shall constitute Losses payable to the Indemnified Party as set forth in this ARTICLE IX.
(e) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(ef) The Indemnified Party and the Indemnifying Party shall use commercially reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or client, work-product product, common interest or joint defense privileges. For the avoidance of doubt, nothing in this Section 9.5 shall be construed as a waiver by an Indemnified Party or an Indemnifying Party of any privilege, including any privilege associated with separate counsel as described herein.
Appears in 2 contracts
Samples: Securities Purchase Agreement (EnLink Midstream Partners, LP), Securities Purchase Agreement
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article ARTICLE X), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 2 contracts
Samples: Assignment, Purchase and Assumption Agreement (Community Bank System Inc), Assignment, Purchase and Assumption Agreement (Community Bank System Inc)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party hereunder (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall deliver to the Indemnifying Party promptly, but in no event more than ten thirty (1030) days following such Indemnified Party’s receipt of a Third-Party Claim, notify a written notice of claim specifying its good faith estimate of the Indemnifying U.S. dollar amount of such claim, to the extent then ascertainable (the “Claim Amount”), and describing in reasonable detail the basis upon which the Indemnified Party in writing asserts that such claim is required to be satisfied (the “Claim -76- Basis”) (such notice, a “Claim Notice”) and a copy of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, provided that the failure to timely to or duly give a Claim Notice shall only affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify Thereafter, the Indemnified Party that it desires shall deliver to assume the defense Indemnifying Party, promptly following the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party against such relating to the Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires elects to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed , it being understood that, by assuming the defense of a Third-Party Claim, the Indemnifying Party shall conclusively acknowledge and agree that it has an indemnity obligation with respect to such Third-Party Claim. Once the Indemnifying Party has made such election, the Indemnified Party shall have the right, but not the obligation, right to participate in any such defense and to employ separate counsel of its choosing. The choosing at such Indemnified Party shall participate in any such defense at its expense unless Party’s expense; provided, however, that the Indemnifying Party and shall bear the cost of the Indemnified Party’s separate counsel if in the reasonable opinion of counsel to the Indemnified Party are both named parties to the proceedings and an actual or a potential conflict exists between the Indemnified Party shall have reasonably concluded, based on and the written advice Indemnifying Party that makes such separate representation advisable and/or conduct of counsel, that representation of both parties claim by the same counsel Indemnifying Party would compromise any legal privilege or similar doctrine with respect to the Indemnified Party or any of its Affiliates. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not be inappropriate due entitled to actual direct or potential differing material interests between themassume control of the defense against a Third-Party Claim if (i) the claim for indemnification relates to or arises in connection with any criminal, civil or regulatory proceeding, action, indictment, allegation or investigation, (ii) the claim seeks an injunction or equitable relief against the Indemnified Party (or against the Company or any Company Subsidiary, if the Indemnified Party is a Buyer Indemnified Party), and/or (iii) the Third-Party Claim materially exceeds the balance of the Indemnifying Party’s indemnity obligations hereunder. The If the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim if the terms of such settlement do not contain a release of the Indemnified Parties or would result in (i) the imposition of a consent order, howeverinjunction or decree that would restrict the future activity or conduct of the Indemnified Party, that no such prior written consent (ii) a finding or admission of a violation of Law by the Indemnified Party, or (iii) any monetary liability of the Indemnified Party shall that will not be required to any proposed settlement that involves only the payment of money paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) . If the Indemnifying Party elects not to defend assumes the Indemnified Party against defense of a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of settle, compromise or discharge such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the Indemnifying Party’s prior written consent, which consent of the Indemnifying Party and/or its respective insurershall not be unreasonably withheld, delayed or conditioned.
(dc) The Indemnified Party and the Indemnifying Party shall reasonably cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing reasonable access to each other’s relevant business records books and other documentsrecords, and employees.
. Such cooperation shall include the retention and (eupon the Indemnifying Party’s request) the provision to the Indemnifying Party of books and records and information that are reasonably relevant to such Third-Party Claim, and making employees and Representatives available on a mutually convenient -77- basis during normal business hours to provide additional information and explanation of any material provided hereunder. The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (CVS Caremark Corp)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party Party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party Party (a “Third-Party Claim”), such Indemnified Party shall promptlyshall, but in no event more than ten within twenty (1020) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, provided that the failure timely to give a timely Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period (the “Defense Notice”) that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings Proceedings and shall have the sole power to direct and control such defense at its expense. Once expense commencing upon delivery of the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosingDefense Notice. The Indemnified Party shall may participate in any such defense at its expense unless (which expense after the delivery of the Defense Notice may not be claimed by the Indemnified Party as a Loss); provided that such Indemnified Party shall be entitled to participate in any such defense with separate counsel at the reasonable expense of the Indemnifying Party if the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, Claim on a basis that no such prior written consent would result in (i) a finding or admission of a violation of Law by the Indemnified Party or any of its Affiliates or (ii) any monetary Liability of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money is not concurrently paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party ClaimClaim in such circumstance. The If the Indemnifying Party elects not to defend the Indemnified Party shall not against a Third-Party Claim, the Indemnified Party may settle a the Third-Party Claim without the prior written consent of the Indemnifying Party and/or its respective insurerParty.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (in accordance with the Confidentiality Agreement and consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party Party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (CEGP Acquisition, LLC), Purchase and Sale Agreement (Central Energy Partners Lp)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “"Indemnifying Party”") may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article XSection 5.4(g)), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-"Third Party Claim”"), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s 's receipt of a Third-Third Party Claim, notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “"Claim Notice”"); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party shall have thirty (30) 30 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “"Notice Period”") to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim unless the Indemnified Party has notified the Indemnifying Party in the Claim Notice that it has determined in good faith that there is a reasonable probability that such Third Party Claim may adversely affect it or its Affiliates other than as a result of monetary damages; it being understood that by assuming the defense of a Third Party Claim the Indemnifying Party shall conclusively acknowledge that it has an indemnity obligation with respect to such Third Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense defense, with counsel reasonably satisfactory to the Indemnified Party at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them, or (ii) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, as provided in the first sentence of Section 7.4(c). The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall or any of its Affiliates, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (iii) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates, or (iv) any monetary liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, (ii) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.4(a), or (iii) after assuming the defense of a Third Party Claim, fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s 's right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim. The Indemnified Party shall not settle a Third-Third Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Third Party Claim, including by providing access to each other’s 's relevant business records and other documents, and employees; it being understood that the costs and expenses of the Indemnified Party relating thereto shall be Losses.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Return on Investment Corp), Asset Purchase Agreement (Return on Investment Corp)
Third-Party Claim Indemnification Procedures. With respect to third party claims, all claims for indemnification by any Person that may be entitled to indemnification hereunder (aan "Indemnified Party") shall be asserted and resolved as set forth in this Section 7.4. In the event that any written claim or demand for which a Party may be required to pay an indemnifying party indemnity hereunder (such Party, an “"Indemnifying Party”") may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”)party, such Indemnified Party shall promptly, but in no event more than ten (10) days 20 Business Days following such Indemnified Party’s 's receipt of a Third-Party Claimsuch claim or demand or knowledge thereof, notify the Indemnifying Party in writing of such Third-Party Claim, claim or demand and the amount or the estimated amount of damages sought thereunder thereof to the extent then ascertainable feasible (which estimate shall not be conclusive of the final amount of such Third-Party Claimclaim and demand) (the "Claim Notice"), but failure to give such notice timely shall not relieve the Indemnifying Party of any other remedy sought thereunder, any relevant time constraints relating thereto and, liabilities hereunder unless and to the extent practicablethe Indemnifying Party has suffered prejudice by such failure. The Indemnifying Party shall have 30 Business Days from its receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party (a) whether or not the Indemnifying Party disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such claim or demand and (b) whether or not it will defend the Indemnified Party against such claim or demand. All costs and expenses incurred by the Indemnifying Party in defending such claim or demand shall be a liability of, any other material details pertaining thereto (a “Claim Notice”)and shall be paid by, the Indemnifying Party; provided, however, that the failure timely to give amount of such costs and expenses that shall be a Claim Notice shall affect the rights liability of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect hereunder shall be subject to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days the limitations set forth in the Claim Notice this Article VII. Except as may be required by court proceeding hereinafter provided, in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to will defend the Indemnified Party against a Third-Party Claimsuch claim or demand, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once defense, through counsel reasonably acceptable to the Indemnified Party; provided, however, the Indemnifying Party has duly assumed shall possess such right to assume the defense of a such Third-Party Claim, Claim to the extent that the demand for money damages is less than the remaining limitations set forth in Section 7.8. If any Indemnified Party shall have or Indemnifying Party, as the rightcase may be, but not the obligation, desires to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party it may do so, provided that it shall participate in any such defense at its expense unless comply with reasonable instructions from the Indemnifying Party and or the Indemnified Party are both named parties to Party, as the proceedings case may be, and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themat its sole cost and expense. The Indemnifying Party Party, if it has assumed the defense of any third party claim as provided in this Agreement, shall notnot consent or otherwise agree to a compromise or settlement of, or the entry of any judgment arising from, any such third party claim without the prior written consent of the Indemnified Party, settle, which shall not be unreasonably withheld. Any compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no settlement shall provide for a complete written release by such prior written consent third party of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the . The Indemnified Party shall have the sole and exclusive right but not to settle any third party claim, on such terms and conditions as it deems reasonably appropriate, to the obligation to assume its own defense; it being understood that extent such third party claim involves equitable or other non-monetary relief against the Indemnified Party’s , and shall have the right to indemnification settle any third party claim involving money damages for a Third-which the Indemnifying Party Claim shall has not be adversely affected by assuming assumed the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without pursuant to this Section 7.4 with the written consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party and Party, which consent shall not be unreasonably withheld or delayed. To the extent the Indemnifying Party shall cooperate direct, control or participate in order to ensure the proper defense or settlement of any third party claim or demand, the Indemnified Party will give the Indemnifying Party and adequate defense of a Third-Party Claimits counsel access to, including by providing access to each other’s during normal business hours, the relevant business records and other documents, and employees.
(e) The shall permit them to consult with the employees and counsel of the Indemnified Party and Party. Regardless of which Person assumes control of the Indemnifying defense of any claim, each Party shall use cooperate and provide the other Party reasonable best efforts assistance in the defense thereof, including, but not limited to, by providing the other party with reasonable access to avoid production of confidential information employees and officers (consistent with Applicable Law), including as witnesses) and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privilegesother information.
Appears in 2 contracts
Samples: Purchase Agreement (Scansoft Inc), Purchase Agreement (Scansoft Inc)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (other than a claim by a Taxing authority for Taxes) (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten thirty (1030) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial an adverse effect on the resolution of the Third-Party Claim or on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expensedefense. All costs and expenses incurred by the Indemnifying Party in defending such action shall be counted in calculating the amounts set forth in Section 8.3(b) if the Third-Party Claim relates to a matter to which Section 8.3(b) applies. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosingdefense. The If the Indemnified Party shall participate in any such defense defense, it shall participate at its sole cost and expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties by the same counsel would be inappropriate inappropriate, due to actual a non-waivable conflict, or potential differing material interests between them(ii) the Indemnified Party assumes the defense of a Third-Party Claim after the Indemnifying Party has failed to diligently pursue a Third-Party Claim it has assumed, in which case the Indemnifying Party shall be liable for the reasonable fees and expenses of one separate counsel (in addition to any necessary local counsel) to the extent such Third-Party Claim is subject to indemnification or reimbursement under Section 8.2 or Section 8.3. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, howeverinjunction or decree that would restrict the future activity or conduct of the Indemnified Party, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party, (iii) a finding or admission that no such prior written consent would have an adverse effect on other claims made or threatened against the Indemnified Party, or (iv) except to the extent within the amounts set forth in Section 8.3(b) if applicable, any monetary liability of the Indemnified Party shall that will not be required to any proposed settlement that involves only the payment of money paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, (ii) is not entitled to defend the Third-Party Claim as a result of the Indemnified Party’s election to defend the Third-Party Claim as provided in Section 8.4(b) hereof, or (iii) after assuming the defense of a Third-Party Claim, fails to take reasonable steps necessary to defend diligently such Third-Party Claim, the Indemnified Party shall have the right but not the obligation to assume provide its own defensedefense and shall consult with the Indemnifying Party regarding the strategy for defense of such claim, including with respect to the Indemnified Party’s choice of legal counsel; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming whether it assumes the defense of such Third-Party Claim. The Indemnified Party shall not settle have no liability with respect to a Third-Party Claim settled without the its consent, which consent of the Indemnifying Party and/or its respective insurershall not be unreasonably delayed, conditioned or withheld.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employeesemployees (including, if necessary, availability for depositions and testifying); it being understood that the reasonable costs and expenses of the Indemnified Party relating thereto shall be considered Losses. The Indemnified Party and the Indemnifying Party shall keep each other fully informed with respect to the status of such Third-Party Claim.
(e) The Indemnified Party and the Indemnifying Party shall use commercially reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privilegesprivileges (if applicable).
(f) Each of Buyer and Seller hereby consents to the non-exclusive jurisdiction of any court in which a Third-Party Claim is brought for purposes of any claim for indemnification or reimbursement with respect to such Third-Party Claim or the matters alleged therein.
Appears in 2 contracts
Samples: Stock Purchase Agreement (At&t Inc.), Stock Purchase Agreement (Frontier Communications Corp)
Third-Party Claim Indemnification Procedures. (a) In the event that The obligations and Liabilities of any written claim or demand for which an indemnifying party Person required to provide indemnification under this Article 8 (each, an “Indemnifying Party”) may have liability with respect to Losses arising from claims of any Indemnified Party hereunder, other than those relating to Taxes (third party which are subject to the exclusive subject indemnification provided for in this Article 8 (“Third Party Claims”) shall be governed by and contingent upon the terms and conditions set forth in this Section 8.3. If any Person entitled to indemnification pursuant to Section 8.2(a) or 8.2(b) (an “Indemnified Party”) shall receive notice of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such the Indemnified Party shall promptly, but in no event more than give the Indemnifying Party notice of such Third Party Claim within ten (10) days following such of the receipt by the Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”)notice; provided, however, that the failure timely to give a Claim Notice provide such notice shall affect not release the rights Indemnifying Party from any of an Indemnified Party hereunder only its respective obligations under this Article 8 except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to is materially prejudiced by such Third-Party Claimfailure. The Indemnifying Party notice of claim shall have thirty (30) days (or such lesser number of days set forth describe in reasonable detail the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) facts known to notify the Indemnified Party that it desires giving rise to assume such indemnification claim, and the defense amount or good faith estimate of the Indemnified Party against such Third-Party Claimamount arising therefrom.
(b) The Indemnifying Party shall be entitled to assume and control the defense of a Third Party Claim at its expense and through counsel of its choice (such counsel to be reasonably acceptable to the Indemnified Party) if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days after the receipt of such notice from the Indemnified Party; provided, however, if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel, in each jurisdiction for which counsel is required, at the expense of the Indemnifying Party. In the event that the Indemnifying Party notifies exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnifying Party shall conduct the defense of the Third Party Claim actively and diligently and the Indemnified Party within shall cooperate with the Notice Period that it desires Indemnifying Party in such defense and make available to defend the Indemnifying Party at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against a Third-any such Third Party Claim, the Indemnifying Party shall have the right to defend cooperate with the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and make available to employ separate counsel of its choosing. The the Indemnified Party shall participate in any such defense Party, at its expense unless the Indemnifying Party Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party are both named parties to Claim may be settled by any party conducting the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, defense against such claim without the prior written consent of the Indemnified Partyother party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written which consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerunreasonably withheld, delayed or conditioned.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 2 contracts
Samples: Stock Purchase Agreement (China Healthcare Acquisition Corp.), Stock Purchase Agreement (Intersections Inc)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying either party may have liability (such Person, an “Indemnifying PartyPerson”) may have liability to any Seller Indemnified Party hereunderPerson or Purchaser Indemnified Person, other than those relating to Taxes as applicable (which are the exclusive subject of Article Xsuch Person, an “Indemnified Person”), hereunder is asserted against or sought to be collected from any Indemnified Party Person by a third party (a “Third-Party Claim”), such Indemnified Party Person shall promptly, but in no event more than ten (10) days following such Indemnified PartyPerson’s receipt of a Third-Party Claim, notify the Indemnifying Party Person in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party Person hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party Person with respect to such Third-Party Claim. The Indemnifying Party Person shall have thirty (30) 20 days (or such lesser number of days set forth in the Claim Notice as may be required by any court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party Person that it desires to assume the defense of defend the Indemnified Party Person against such Third-Party Claim.
(b) In the event that the Indemnifying Party Person notifies the Indemnified Party Person within the Notice Period that it desires to defend the Indemnified Party Person against a Third-Party Claim, the Indemnifying Party Person shall have the right to defend the Indemnified Party Person by appropriate proceedings and shall have the sole power to direct and control such defense defense, with counsel reasonably satisfactory to the Indemnified Person at its the Indemnifying Person’s expense. Once the Indemnifying Party Person has duly assumed the defense of a Third-Party Claim, the Indemnified Party Person shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party Person shall participate in any such defense at its expense unless (i) the Indemnifying Party Person and the Indemnified Party Person are both named parties to the proceedings and the Indemnified Party Person shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them, or (ii) the Indemnified Person assumes the defense of a Third-Party Claim after the Indemnifying Person has failed to diligently pursue a Third-Party Claim it has assumed, as provided in the first sentence of Section 8.4(c). The Indemnifying Party Person shall not, without the prior written consent of the Indemnified PartyPerson, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that Claim unless (A) no such prior written consent finding or admission of any violation of Law or any violation of the rights of any Person by the Indemnified Party shall Person or any of its Affiliates can be required to any proposed settlement made as the result of such action, and (B) the sole relief (if any) provided is monetary damages that involves only the payment of money are reimbursed in full by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityPerson.
(c) If the Indemnifying Party Person (i) elects not to defend the Indemnified Party Person against a Third-Party Claim, whether by not giving the Indemnified Party Person timely notice of its desire to so defend or otherwiseotherwise or (ii) after assuming the defense of a Third-Party Claim, fails to take reasonable steps necessary to defend diligently such Third-Party Claim within five days after receiving written notice from the Indemnified Person to the effect that the Indemnifying Person has so failed, the Indemnified Party Person shall have the right but not the obligation to assume its own defense, and in such event (A) the Indemnifying Person shall be bound by any action taken, or any compromise or settlement effected by the Indemnified Person, and (B) to the extent that such Third-Party Claim is properly subject to indemnification or reimbursement under Section 8.2 or Section 8.3, all costs and expenses incurred by the Indemnified Person in defending the Third-Party Claim (including reasonable legal, accounting and other professional fees and disbursements and expenses of investigation, preparation and defense) shall be reimbursed by the Indemnifying Person as incurred. If the Indemnifying Person has not duly assumed the defense of the Third-Party Claim within 10 calendar days following its receipt of the Claim Notice, the Indemnifying Person shall thereafter have no further right to assume or control such defense; it being understood that the Indemnified PartyPerson’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party Person and the Indemnifying Party Person shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees; it being understood that the costs and expenses of the Indemnified Person relating thereto shall be considered as Losses.
(e) The Indemnified Party Person and the Indemnifying Person shall keep each other informed on a reasonable basis concerning the status of such Third-Party Claim and any related proceedings at all stages thereof, and shall render to each other such assistance as they may reasonably require of each other and shall cooperate with each other in good faith in order to ensure the proper and adequate defense of such Third-Party Claim. All reasonable out-of-pocket costs and expenses incurred by the Indemnified Person in connection therewith shall be reimbursed by the Indemnifying Person as incurred.
(f) The Indemnified Person and the Indemnifying Person shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Lawapplicable Law and rules of procedure), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Gsi Commerce Inc), Stock Purchase Agreement (Gsi Commerce Inc)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party Party hereunder (an “Indemnifying Party”) may reasonably be expected to have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim)ascertainable, any other remedy sought thereunder, any relevant time constraints relating thereto and, a reasonably detailed explanation of the events giving rise to the extent practicable, such Third-Party Claim and any other material details pertaining thereto thereto, in each case to the extent known by the Indemnified Party (a “Claim Notice”); provided, however, provided that the failure to timely to give a Claim Notice shall only affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on actually and materially prejudices the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. .
(b) The Indemnifying Party shall have the right (but not the obligation) to assume the defense and control of any Third Party Claim within thirty (30) days (or such lesser number after the receipt of days set forth in the applicable Claim Notice if the Indemnifying Party admits that it has an indemnification obligation hereunder with respect to the Third Party Claim, in which case such admission shall constitute the Indemnifying Party’s undertaking to pay directly all costs, expenses, damages, judgments, awards, penalties and assessments incurred in connection therewith, except as may be required by court proceeding otherwise provided below; provided, however, that an Indemnifying Party shall not have the right to assume and control the defense of any criminal or regulatory action or claim or any Third-Party Claim in the event of the Claim seeks equitable or non-monetary remedies or obligations on the Indemnified Party, if a litigated matter) after receipt Third-Party Claim involves a client of the Claim Notice (Business or the “Notice Period”) business of any of the Sellers and or their respective Affiliates, if in the reasonable opinion of counsel to notify the Indemnified Party a conflict or potential conflict exists between the Indemnified Party and the Indemnifying Party that would make such separate representation advisable, or if one or more defenses are available to the Indemnified Party that it desires are not available to assume the defense Indemnifying Party. With the prior written consent of the Indemnified Party, the Indemnifying Party against such may undertake and control the defense, compromise and/or settlement of the Third-Party Claim.
(b) Claim without admitting that it has an indemnification obligation hereunder. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires elects to defend defend, or is otherwise permitted by the Indemnified Party to defend, the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the such Indemnified Party by appropriate proceedings proceedings, with counsel not reasonably objected to by the Indemnified Party. Unless and until the Indemnifying Party shall have so assumed the sole power defense of such action or claim, the Parties shall cooperate in the defense of such action or claim, and all of the reasonable costs and expenses incurred by the Indemnified Party in connection with the defense, settlement or compromise of such claim or action shall be Losses subject to direct and control such defense at its expenseindemnification hereunder to the extent provided herein. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claimmade such election, the Indemnified Party shall have the right, but not the obligation, right to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense choosing at its the expense unless the Indemnifying Party and of the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themParty. The Indemnifying Party shall not, without the prior written consent of the such Indemnified PartyParty (such consent not to be unreasonably withheld, conditioned or delayed), settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim if the terms of such settlement would result in (i) the imposition of a consent order, howeverinjunction, decree or other binding action that no would restrict the future activity or conduct of such prior written consent of the Indemnified Party shall or involve non-monetary relief, (ii) a finding or admission of a violation of Law by such Indemnified Party, or (iii) any monetary liability of such Indemnified Party that will not be required to any proposed settlement that involves only the payment of money paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim . Whether or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend assumes the Indemnified Party against defense of a Third-Party Claim, whether by such Indemnified Party shall not giving admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without such Indemnifying Party’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed). So long as the Indemnifying Party is defending the Third-Party Claim actively and in good faith pursuant to this Section 11.8, the Indemnified Party timely (A) shall not compromise or settle, or consent to the entry of a judgment with respect to, the Third-Party Claim without the prior written consent of the Indemnifying Party and (B) shall provide the Indemnifying Party with reasonable cooperation in the defense of the Third Party Claim. If the Indemnifying Party, within a reasonable time after notice of its desire the Third-Party Claim, fails to so defend or otherwisethe Third-Party Claim actively and in good faith as described in this Section 11.8, then the Indemnified Party shall have the right but not to undertake the obligation defense, compromise or settlement of the Third-Party Claim on behalf of and for the account and risk of the Indemnifying Party, and the Indemnifying Party shall thereafter have no right to assume its own defense; it being understood that challenge the Indemnified Party’s right defense, compromise or settlement. Notwithstanding anything to indemnification for the contrary in this Section 11.8, if there is a reasonable probability that any Third-Party Claim shall not be may materially and adversely affected by assuming affect the defense Indemnified Party other than as a result of such Third-Party Claim. The money damages or other money payments, then the Indemnified Party shall not settle a Third-have the right to undertake and control the defense, compromise and/or settlement of such Third Party Claim without the consent of the Indemnifying Party and/or its respective insurerClaim.
(dc) The Indemnified Party and the Indemnifying Party shall reasonably cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing reasonable access to each other’s relevant business records books and other documentsrecords, and employees.
. Such cooperation shall include the retention and (eupon the Indemnifying Party’s request) the provision to the Indemnifying Party of books, records and information that are reasonably relevant to such Third-Party Claim, and making employees and representatives available on a mutually convenient basis during normal business hours to provide additional information and explanation of any material provided hereunder. The Indemnified Party and the Indemnifying Party shall use commercially reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(d) Anything to the contrary in this Section notwithstanding, if a Third-Party Claim includes both a claim for Taxes that are Excluded Liabilities and a claim for Taxes that are not Excluded Liabilities, the Parties shall exercise commercially reasonable efforts to separate such Third-Party Claim into two separate Tax Proceedings, one of which concerns only Taxes that are Excluded Liabilities and the other of which concerns only Taxes that are not Excluded Liabilities. If such Third-Party Claim cannot be so separated, Sellers (if the claim for Taxes that are Excluded Liabilities exceeds or is reasonably expected to exceed in amount the claim for Taxes that are not Excluded Liabilities) or otherwise Purchaser (Sellers or Purchaser, as the case may be, the “Controlling Party”), shall be entitled to control such Third-Party Claim (such Third-Party Claim, a “Tax Claim”). In such case, the other party (the “Non-Controlling Party”) shall be entitled to participate fully (at the Non-Controlling Party’s sole expense) in the conduct of such Tax Claim and the Controlling Party shall not settle such Tax Claim without the consent of such Non-Controlling Party (which consent shall not be unreasonably withheld, conditioned or delayed). The costs and expenses of conducting the defense of such Tax Claim shall be reasonably apportioned based on the relative amounts at issue in the Tax Claim that are Excluded Liabilities that are not Excluded Liabilities.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Triumph Bancorp, Inc.)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may Party could reasonably be expected to have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in promptly (and shall use reasonable efforts to do so no event more later than ten twenty (1020) days following such the Indemnified Party’s receipt discovery of the assertion of such a Third-Party Claim, claim) notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then reasonably ascertainable (which estimate shall not be conclusive and a reasonably detailed explanation of the final amount of events giving rise to such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, Claim (to the extent practicable, any other material details pertaining thereto then reasonably ascertainable) (a “Claim Notice”); provided, however, provided that the failure to timely to give a Claim Notice shall affect not relieve the rights Indemnifying Party of an Indemnified Party hereunder only its obligations hereunder, except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or been actually and materially prejudiced by such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event failure. Promptly following delivery of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify Notice, the Indemnified Party shall deliver to the Indemnifying Party, promptly following the Indemnified Party’s receipt thereof, copies of all material documents (including court papers) that it desires have been received prior to assume the defense of such time by the Indemnified Party against such relating to the Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party in writing within the Notice Period thirty (30) days that it desires elects to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings actively and diligently and shall have the sole power to direct and control such defense at its expense; provided that, prior to assuming the defense, the Indemnifying Party covenants and agrees that that it is required to indemnify the Indemnified Party pursuant to this Agreement with respect to any Losses from such Third-Party Claim (subject to the applicable limitations of this Article VIII); provided further that the Indemnifying Party will not have the right to assume or continue control of the defense of any Third-Party Claim to the extent: (i) the Third-Party Claim relates to or arises in connection with any criminal or regulatory proceeding, (ii) the Third-Party Claim seeks an injunction or other equitable relief against any Indemnified Party other than as an ancillary claim, (iii) the Third-Party Claim involves Taxes, (iv) the Third-Party Claim is brought on or behalf of one of the customers or suppliers listed on Schedule 3.15(a) or 3.15(b) and primarily relates to the Business, (v) the Third-Party Claim seeks an amount of Losses in excess of the Cap, or (vi) the Indemnifying Party does not actively and diligently conduct the defense of the Third-Party Claim. Once the Indemnifying Party has duly assumed made such election (if permitted pursuant to the above), the Indemnified Party shall have the right to participate in (but not control) any such defense and to employ separate counsel of its choosing at such Indemnified Party’s own expense. The Indemnifying Party may not consent to the entry of any judgment or enter into any settlement without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned, except that no such consent will be required if such settlement or judgment (i) provides as the sole relief monetary damages (including any expenses and fees) that are reimbursed to the Indemnified Party in full as Losses, (ii) does not entail any admission of liability on the part of any Indemnified Party and (iii) releases the Indemnified Parties unconditionally from all liability or Losses in connection with such Third-Party Claim and the facts and circumstances underlying such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in admit any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Partyliability with respect to, settle, compromise or offer to settle or compromise any Third-Party Claim; provideddischarge, however, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the Indemnifying Party’s prior written consent of the Indemnifying Party and/or its respective insurer(which shall not be unreasonably withheld, delayed or conditioned).
(dc) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing reasonable access to each other’s relevant business records Books and other documentsRecords, and employees.
. Such cooperation shall include the retention and (eupon the Indemnifying Party’s request) the provision to the Indemnifying Party of Books and Records and information that are reasonably relevant to such Third-Party Claim, and making employees and Representatives available on a mutually convenient basis during normal business hours to provide additional information and explanation of any material provided hereunder. The Indemnified Party and the Indemnifying Party shall use reasonable best commercial efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Hershey Co), Asset Purchase Agreement (B&G Foods, Inc.)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive governed, subject of Article Xto Section 5.5(d), by Section 5.5), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Third Party Claim, notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure to provide such notice in a timely to give a Claim Notice manner shall affect not release the rights Indemnifying Party from any of an Indemnified Party hereunder only its indemnification obligations under this Article VII (i) except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect is prejudiced by such failure and (ii) except to such Third-Party Claimthe extent of the Indemnified Party’s expenses that are incurred during the period in which timely notice was not provided. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding proceedings in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim provided that the Indemnifying Party may only elect to defend the Indemnified Party and assume direction and control of such defense if (i) the Third Party Claim does not seek an order, injunction or other equitable relief that if granted would be material to the Indemnified Party, (ii) the Indemnified Party shall not have reasonably concluded, based on the advice of outside counsel, that representation of both the Indemnified Party and the Indemnifying Party would be inappropriate due to actual or potential differing interests between them and (iii) the Indemnifying Party actively and diligently defends in good faith such Third Party Claim and keeps the Indemnified Party reasonably informed of the progress of such Third Party Claim; provided, further, that, from the date of such notice electing to assume the conduct and control of the defense of a Third Party Claim, the Indemnifying Party, regardless of whether it is otherwise required to indemnify the Indemnified Party hereunder with respect to such Third Party Claim, shall be responsible for the costs and fees of such Indemnified Party’s attorneys and related litigation expenses incurred by it in connection with such Third Party Claim.
(b) In the event that the Indemnifying Party validly notifies the Indemnified Party within the Notice Period that it desires to defend shall assume the defense of the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once ; provided, that once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and (i) the Indemnified Party shall have reasonably concluded, based on the written advice of outside counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themthem or (ii) the Indemnifying Party shall have authorized the Indemnified Party to employ separate counsel at the Indemnifying Party’s expense. The Indemnifying Party shall not, without except with the prior written consent of the Indemnified PartyParty (which consent shall not be unreasonably withheld, conditioned or delayed), settle, compromise or offer to settle discharge, or compromise admit any Third-liability with respect to, any such Third Party Claim; provided, however, that no such prior written consent of Claim unless the Indemnified Party shall be required to any proposed settlement that involves only the payment relief consists solely of money Losses to be paid by the Indemnifying Party, Party and includes as an unconditional term thereof the granting giving by the person Person(s) asserting such claim or bringing such action to all Indemnified Parties of an unconditional release from all liability to all Indemnified Parties with respect to such claim and does not include any admission claim. Table of culpability.Contents
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim. The Indemnified Party shall not settle a Third-Third Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Third Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(f) Sellers’ Representative shall act on behalf of the Seller Parties and the Seller Indemnified Parties for purposes of this Section 7.5 for any Third Party Claim that is the subject of the indemnification provisions of this Section 7.5.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Any Indemnified Party shall promptlygive notice as promptly as is reasonably practicable to the Indemnifying Party of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto in respect of which indemnity intends to be sought under this Agreement; provided that the failure of the Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations under this Section 10.6 except to the extent (if any) that the Indemnifying Party shall have been prejudiced thereby. Following receipt of a notice from the Indemnified Party pursuant to this Section 10.6, the Indemnified Party shall permit the Indemnifying Party, at the Indemnifying Party’s election, to assume, at its own expense, the defense of any such claim, suit, action or proceeding with counsel selected by the Indemnifying Party (and not reasonably objected to by the Indemnified Party) if, but only if, the Indemnifying Party acknowledges in writing to the Indemnified Parties that it is obligated under this Agreement to indemnify them against all Losses they incur or have incurred in connection with such third party claim. The Indemnified Party shall not settle, compromise or consent to any judgment in respect of any such claim, suit, action or proceeding without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).
(b) Following the Indemnifying Party’s election to assume the defense of any claim, action or proceeding pursuant to Section 10.6(a), (i) the Indemnified Party shall deliver to the Indemnifying Party, in a timely fashion (which shall be no event more later than ten (10) days following such 10 Business Days after the Indemnified Party’s receipt of a Third-notice of such election), copies of all notices and documents (including court papers) received by the Indemnified Party Claimrelating to such claim, notify action or proceeding and (ii) the Indemnified Party shall use its commercially reasonable efforts at the Indemnifying Party’s expense (excluding internal costs) to cooperate in the defense or prosecution thereof as reasonably requested by the Indemnifying Party in writing the context of such Third-Party Claimthe relevant claim, action or proceeding (including the amount or the estimated amount quantum and nature of damages sought thereunder thereunder). Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the extent then ascertainable (which estimate shall not be conclusive Indemnifying Party of the final amount records and information that are reasonably relevant to such claim, action or proceeding, and making a reasonable number of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto andemployees reasonably available on a mutually convenient basis, to the extent practicable, provide additional information and explanation of any other material details pertaining thereto (a “Claim Notice”)provided hereunder; provided, however, that the failure timely to give foregoing shall be at the Indemnifying Party’s expense (excluding internal costs) and shall be organized in a Claim Notice manner as shall affect not unreasonably disrupt the rights normal operations of an the Indemnified Party hereunder only Party’s business having regard to the extent that context in which such failure has a material prejudicial effect on cooperation is requested and of the defenses relevant claim, action or other rights available to proceeding (including the Indemnifying Party with respect to such Third-Party Claim. quantum and nature of the damages sought thereunder).
(c) The Indemnifying Party shall have thirty (30) days (or such lesser number be liable for the reasonable fees and expenses of days set forth in the Claim Notice as may be required counsel employed by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume for any period during which the Indemnifying Party has not assumed the defense of a claim, action or proceeding for which the Indemnified Party against such Third-Party Claim.
is entitled to indemnification hereunder, except to the extent (bif any) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend been prejudiced by the Indemnified Party Party’s failure to give timely notice of such claim, action or proceeding as required by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once Section 10.6(a).
(d) If the Indemnifying Party has duly assumed assumes the defense of a Third-Party Claimany claim, action or proceeding pursuant to Section 10.6(a), the Indemnified Party shall have the right, right (but not the obligation, duty) to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense counsel, at its expense unless own expense, separate from the counsel employed by the Indemnifying Party.
(e) If the Indemnifying Party does not elect to assume defense of any claim, action or proceeding pursuant to Section 10.6(a), the Indemnifying Party may nevertheless participate (but not control) and employ its own counsel (not reasonably objected to by the Indemnified Party), at its expense, in the defense of such claim, action or proceeding.
(f) Each Party to this Agreement agrees to use its commercially reasonable efforts to cooperate and cause its employees to cooperate with and assist the appropriate Indemnifying Party and Indemnified Party in connection with defending any third party claim, action, proceeding or liability for which indemnity is sought hereunder, including, but not limited to claims, actions and proceedings with respect to which an Indemnifying Party has elected to assume or participate in the defense, including using its commercially reasonable efforts to mitigate any such claim, action, proceeding or liability for which indemnity is sought hereunder; provided, however, that if the Indemnified Party are both named parties fails to use commercially reasonable efforts to mitigate any claim, action, proceeding or liability, then notwithstanding anything else to the proceedings and contrary contained in this Agreement, such failure shall only affect the Indemnified Party’s right to indemnification with respect to such claim, action, proceeding or liability to the extent of any Losses that could reasonably be expected to have been avoided if the Indemnified Party shall have reasonably concludedhad made such commercially reasonable efforts.
(g) Subject to Sections 10.1(b), based on 10.2(b), 10.3, 10.4 and 10.5, the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall notmay, without the prior written consent of the Indemnified Party, settlesettle or compromise or consent to the entry of any judgment with respect to a claim or any litigation resulting therefrom which is the subject of Section 10.6 if such settlement, compromise or offer consent (i) includes an unconditional release of all the Indemnified Parties from all liability arising out of or related to settle such action or the subject matter thereof, (ii) includes no admission of fault or culpability by or on behalf of any Indemnified Party or its businesses, and (iii) provides for settlement or relief solely in the form of monetary damages to be paid fully by the Indemnifying Party. Any other type of settlement or compromise or consent to the entry of any Third-judgment shall not be undertaken by the Indemnifying Party Claim; provided, however, that no such without obtaining the prior written consent of the Indemnified Party to its terms, which consent shall not be required to any proposed settlement unreasonably withheld or delayed; provided that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, if the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that given such consent, the Indemnified Party’s right Party agrees that it shall, and shall cause its Affiliates to, submit to indemnification for a Thirdany non-Party Claim shall not be adversely affected by assuming the defense monetary relief of judgment arising out of or forming part of any such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurersettlement, compromise or consent.
(dh) The With respect to any third party claim, action or proceeding in relation to which an Indemnifying Party is required to indemnify an Indemnified Party pursuant to this Section 10.6 (an “Indemnified Claim”) that is combined or joined with one or more claims, actions or proceedings that are not Indemnified Claims or with respect to an Indemnified Claim under which both the Indemnified Party and the Indemnifying Party may be liable, which both desire to contest and control, the control of such claim, action or proceeding shall rest with the Person having the larger amount in dispute, and the Person in control may not settle or compromise any such claim without the prior written consent of the other Person (such consent not to be unreasonably withheld or delayed); provided, however, that if an Indemnifying Party acknowledges in writing that it is obligated to indemnify an Indemnified Party with respect to any Indemnified Claim, the Indemnifying Party, and not the Indemnified Party, shall be deemed to have the amounts of such Indemnified Claim in dispute.
(i) Whether or not the Indemnifying Party chooses to defend any claim involving a third Party, all the Parties hereto (i) shall cooperate in order to ensure the proper defense thereof and adequate defense of a Third-Party Claim(ii) shall furnish such records, including by providing access to each other’s relevant business records information and other documentstestimony, and employees.
attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. With respect to any claim subject to indemnification under this Section 10.6, the Parties agree to cooperate in such a manner as to preserve in full (eto the extent possible) The Indemnified Party the confidentiality of all confidential information and the Indemnifying attorney-client and work-product privileges. In connection therewith, each Party agrees that: (A) it shall use its reasonable best efforts efforts, in respect of any claim in which it has assumed or participated in the defense, to avoid production of confidential information (consistent with Applicable Lawapplicable Law and rules of procedure), and to cause (B) all communications among employeesbetween any Party hereto and counsel responsible for or participating in the defense of any claim shall, counsel and others representing any party to a Third-Party Claim to the extent possible, be made so as to preserve any applicable attorney-client or work-product privilegesprivilege.
Appears in 1 contract
Samples: Asset Purchase Agreement (Inverness Medical Innovations Inc)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying a party (in such capacity, an “Indemnifying PartyPerson”) may have liability to any Indemnified Party Person hereunder, other than those relating to Taxes (which are the exclusive subject of Article XSection 6.11), is asserted against or sought to be collected from any Indemnified Party Person by a third party (a “Third-Party Claim”), such Indemnified Party Person shall promptly, but in no event more than ten (10) days following such Indemnified PartyPerson’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing Person of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim)ascertainable, any other remedy sought thereunder, any relevant time constraints relating thereto andthereto, a reasonably detailed explanation of the events giving rise to the extent practicable, such Third-Party Claim and any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure to timely to give a Claim Notice shall affect not relieve the rights Indemnifying Person of an Indemnified Party hereunder only its obligations hereunder, except to the extent that the Indemnifying Person shall have been actually and materially prejudiced by such failure has a material prejudicial effect on or as provided in Section 8.1. Thereafter, the defenses or other rights available Indemnified Person shall deliver to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify Person, promptly following the Indemnified Party that it desires to assume the defense Person’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party against such Person relating to the Third-Party Claim.
(b) In the event that the Indemnifying Party Person notifies the Indemnified Party within the Notice Period Person that it desires elects to defend the Indemnified Party Person against a Third-Party Claim, the Indemnifying Party Person shall have the right to defend the Indemnified Party Person by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party Person has duly assumed the defense of a Third-Party Claimmade such election, the Indemnified Party Person shall have the right, but not the obligation, right to participate in (but not control) any such defense and to employ separate counsel of its choosing. The choosing at such Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themPerson’s expense. The Indemnifying Party Person shall not, without the prior written consent of the Indemnified PartyPerson, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim if the terms of such settlement would result in: (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall be required to any proposed settlement that involves only the payment Person or (ii) a finding or admission of money a violation of Law by the Indemnifying Party, includes as Indemnified Person that would have an unconditional term thereof adverse effect on the granting by the person asserting such claim Indemnified Person. Whether or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend Person assumes the Indemnified Party against defense of a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim Person shall not be adversely affected by assuming the defense of admit any liability with respect to, settle, compromise or discharge, such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent Indemnifying Person’s prior written consent. If the Indemnifying Person assumes the defense of a Third-Party Claim and is in good faith contesting such Third-Party Claim, the Indemnified Person shall agree to any settlement, compromise or discharge of a Third-Party Claim that the Indemnifying Person may reasonably recommend and that by its terms (A) obligates the Indemnifying Person to pay the full amount of Losses in connection with such Third-Party Claim (other than with respect to any Losses (or portion thereof) that are not required to be paid as a result of such Losses being (or portion thereof) within the Basket or in excess of the Indemnifying applicable limitation set forth in Section 8.4) and (B) releases the Indemnified Person in connection with such Third-Party and/or its respective insurerClaim.
(dc) The Indemnified Party Person and the Indemnifying Party Person shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing reasonable access to each other’s relevant business records books and other documentsrecords, and employees.
. Such cooperation shall include the retention and (eupon the Indemnifying Person’s request) the provision to the Indemnifying Person of books and records and information that are reasonably relevant to such Third-Party Claim, and making employees and Representatives available on a mutually convenient basis during normal business hours to provide additional information and explanation of any material provided hereunder. The Indemnified Party Person and the Indemnifying Party Person shall use reasonable best commercial efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Samples: Stock Purchase Agreement (DSW Inc.)
Third-Party Claim Indemnification Procedures. (a) In the event that If any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, hereunder (other than those relating a claim brought with respect to Taxes (Tax Liabilities under Section 5.4, which are the exclusive subject of Article Xshall be governed by that Section), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, promptly (but in no event more later than ten (1020 Business Days after receipt thereof) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable Claim (which estimate shall not be conclusive of the final amount of such a “Third-Party Claim)Claim Notice,” collectively with Direct Claim Notices, any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim NoticeNotices”); provided, however, that the failure timely to give a Third-Party Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. A Third-Party Claim Notice shall contain a brief summary of the facts underlying or relating to such claim to the extent then known by the Indemnified Party or a copy of any correspondence or notice received from the relevant third party and a statement that the Indemnified Party seeks indemnification for Losses relating to such Third-Party Claim.
(b) The Indemnifying Party shall have thirty (30) 30 days (or such lesser number of days set forth in the Third-Party Claim Notice as may be required by any Government Entity, court proceeding in the event of a litigated matteror regulatory inquiry or investigation) after receipt of the Third-Party Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim unless the Third Party Claim involves criminal liability or in which equitable relief is sought against any of the Indemnified Parties; it being understood that, by assuming the defense of a Third-Party Claim, the Indemnifying Party shall acknowledge its obligation to indemnify the Indemnified Party with respect to all Losses imposed on, sustained, incurred or suffered by, or asserted against the Indemnified Party in respect of such Third-Party Claim (subject only to the limitations contained in Section 7.2(b) or 7.3(b), as the case may be, and any amounts actually recovered as contemplated by Section 7.8(a)) and all Losses sustained, incurred or suffered by the Indemnified Party in connection with such defense prior to such assumption shall be reimbursed by the Indemnifying Party.
(bc) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have proceedings, with counsel selected by the sole power Indemnifying Party that is reasonably satisfactory to direct and control such defense the Indemnified Party, at its expensethe expense of the Indemnifying Party. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense defense, including the opportunity to participate in any discussions or correspondence with any Government Entity, and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its own expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and counsel to the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party shall notin respect thereof, without the prior written consent of or (ii) the Indemnified Party, settle, compromise or offer to settle or compromise any Party assumes the defense of a Third-Party Claim; provided, however, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by Claim after the Indemnifying PartyParty has failed to diligently pursue a Third-Party Claim it has assumed, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityprovided in Section 7.4(d).
(cd) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, (ii) is not entitled to defend the Third-Party Claim as provided in Section 7.4(b), or (iii) after assuming the defense of a Third-Party Claim, fails to take reasonable steps necessary to negotiate for settlement or defend diligently such Third-Party Claim within 10 Business Days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right right, but not the obligation obligation, to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified .
(e) Whether or not the Indemnifying Party shall not settle have assumed defense of a Third-Party Claim, (i) the Indemnified Party shall have no liability with respect to any settlement or compromise of such Third-Party Claim effected without its written consent (which consent shall not be unreasonably withheld) and (ii) the Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld), consent to the entry of judgment, admit any liability with respect to, settle, compromise, discharge or offer to settle, compromise or discharge any Third-Party Claim on a basis that would result in (A) the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any of its Affiliates, (B) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (C) a finding or admission of a violation of Law, of a violation of the rights of any Person or that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates, or (D) except to the extent within the basket set forth in Section 7.2(b) or 7.3(b), as the case may be, any monetary liability of the Indemnified Party that will not be promptly paid or reimbursed by the Indemnifying Party and/or or anything less than a complete release being provided to the Indemnified Party and its respective insurerAffiliates.
(df) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access during regular business hours to each other’s relevant business records and other documents, and employees; provided, however, that such cooperation shall not unreasonably interfere with the business or operations of the providing party. All Losses sustained, incurred or suffered by the Indemnified Party in connection with responding to, complying with or satisfying the Indemnifying Party’s requests for cooperation shall be promptly reimbursed by the Indemnifying Party. If the Indemnifying Party disputes the amount of, or otherwise refuses or fails to reimburse, any such Losses that the Indemnified Party has incurred and for which the Indemnified Party has sought reimbursement from the Indemnifying Party, the Indemnified Party shall not be obligated to continue providing cooperation with respect to the defense of the relevant Third-Party Claim until such dispute has become the subject of a Final Determination or all such Losses have been reimbursed in full.
(eg) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Samples: Share Purchase Agreement (Cree Inc)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “"Indemnifying Party”") may have liability to any party hereunder (an "Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), Party") is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-"Third Party Claim”"), such Indemnified Party shall promptly, but in no event more than ten (10) days 15 Business Days following such Indemnified Party’s 's receipt of a Third-Third Party ClaimClaim (and no fewer than 10 days prior to a scheduled appearance date in a litigated matter), notify the Indemnifying Party Party, and, if such claim is being made by a Purchaser Indemnified Party, the Escrow Agent, in writing of such Third-Third Party Claim, its good faith estimate of the amount or potential Losses (the estimated amount of damages "Loss Estimate") sought thereunder if and to the extent then reasonably ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), and any other remedy sought thereunder, any relevant time constraints relating thereto to the Indemnified Party's response and, to the extent practicable, any other material details pertaining thereto (a “"Claim Notice”"); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party shall have thirty (30) 30 days (or such lesser number of days set forth in the Claim Notice and as may be required by a court proceeding that cannot be extended, in the event of a litigated matter) after receipt of the Claim Notice (the “"Notice Period”") to notify the Indemnified Party that it desires to shall assume the defense control of and defend the Indemnified Party against such Third-Third Party Claim; provided that the Indemnifying Party shall not have the right to assume the control and defense of such claim and the Indemnified Party shall have the sole power to direct and control such defense if (i) such claim is primarily a claim for injunctive or equitable relief against the Indemnified Party and not monetary damages, (ii) such claim involves a criminal Action, or is otherwise brought by a Governmental Authority, against the Indemnified Party or (iii) if the claim is made by a Purchaser Indemnified Party, the indemnifiable Losses related to such claim would reasonably be expected to exceed 200% of the remainder of the Indemnity Escrow Funds (less a reasonable estimate of all other indemnifiable Losses in respect of prior pending and unresolved claims made pursuant to this Article XI). In the event that the Seller Representative notifies a Purchaser Indemnified Person within the Notice Period that it desires to defend against a Third Party Claim pursuant to this Section 11.4, if and when the Seller Representative conclusively, irrevocably and unconditionally acknowledges in writing that it has an indemnity obligation with respect to such Third Party Claim, as of and after the date of such acknowledgment, all reasonable and documented out of pocket expenses of the Seller Representative in assuming and controlling the defense of such Third Party Claim shall be reimbursed from the Indemnity Escrow Account as incurred (but not with respect to any expenses incurred prior to such acknowledgment), by wire transfer of immediately available funds from the Indemnity Escrow Account to the account or accounts designated by the Seller Representative to the Escrow Agent in writing, as promptly as practicable, but in no event later than 10 days following the date that the Seller Representative submits a claim for reimbursement of such expenses, setting forth in reasonable detail the amounts of such expenses and the nature thereof together with supporting invoices; provided, however, that the Seller Representative shall not be entitled to reimbursement pursuant to this sentence for more than one counsel (plus any appropriate local counsel) in connection with any Third Party Claim.
(b) In Subject to Section 11.4(a), in the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expensedefense, with counsel reasonably satisfactory to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing, reasonably satisfactory to the Indemnifying Party. The Indemnified Party shall participate in any such defense at its sole cost and expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and nationally recognized outside counsel to such Purchaser Indemnified Party reasonably concludes a conflict (other than by virtue of delivery of a Claim Notice) exists or would reasonably be expected to arise between the Seller Representative, the Sellers and/or any Seller Indemnified Party, on the one hand, and such Purchaser Indemnified Party, on the other hand, that would make such separate representation advisable, or (ii) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim that it has assumed, as provided in the first sentence of Section 11.4(c), in which case, the reasonable fees and expenses of one separate counsel (in addition to any necessary local counsel), each reasonably satisfactory to the Indemnifying Party, to the extent such Third Party Claim is subject to indemnification or reimbursement under Section 11.2 or Section 11.3, shall have reasonably concludedbe indemnifiable Losses (it being understood that subject to Section 11.10, based on in such event, the written advice balance of counsel, that representation the Indemnity Escrow Account shall be the sole and exclusive recourse for any such reimbursement of both parties by the same such separate counsel would be inappropriate due to actual or potential differing material interests between themof such Purchaser Indemnified Party for all Third Party Claims). The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; providedClaim on a basis that would result in or would reasonably be expected to result in (A) the imposition of a consent order, however, injunction or decree that no such prior written consent would materially restrict the future activity or conduct of the Indemnified Party shall be required to or any proposed settlement that involves only of its Affiliates, (B) a finding or admission of a material violation of Law or material violation of the payment rights of money any Person by the Indemnifying PartyIndemnified Party or any of its Affiliates, includes as an unconditional term thereof (C) any material non-monetary condition or obligation being imposed on any Indemnified Party or any of its Affiliates or (D) any material adverse effect on the granting by business of the person asserting such claim Indemnified Party or bringing such action any of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityits Affiliates.
(c) If Subject to Section 11.4(a), if the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, or (ii) after assuming the defense of a Third Party Claim, fails to defend diligently such Third Party Claim, the Indemnified Party shall have the right but not the obligation to assume its own defense; defense and shall consult with the Seller Representative regarding the strategy for defense of such claim, with counsel reasonably satisfactory to the Indemnifying Party, it being understood that the Indemnified Party’s 's right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim. The Indemnified Indemnifying Party shall not settle have no liability, and no portion of the Indemnity Escrow Account may be claimed, with respect to a Third-Third Party Claim settled without the its consent, which consent of the Indemnifying Party and/or its respective insurershall not be unreasonably withheld, conditioned or delayed.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Third Party Claim, including by providing access to each other’s 's relevant business records and other documents, documents and employees, it being understood that the third-party, out-of-pocket costs and expenses of the Indemnified Party relating thereto shall be considered Losses. The Indemnified Party and the Indemnifying Party shall keep each other reasonably informed with respect to the status of such Third Party Claim as either may request from time to time.
(e) The Indemnified Party and the Indemnifying Party shall use commercially reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(f) The foregoing provisions of this Section 11.4 shall not apply with respect to any federal, state, local or foreign Tax audit or examination or notice of deficiency or other adjustment, assessment, or redetermination relating to Taxes, which shall be governed solely by Section 10.4.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability Liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, promptly notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim)ascertainable, any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, and any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect not relieve the rights Indemnifying Party of an any Liability that it may have to any Indemnified Party hereunder only except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party is prejudiced thereby. If the Indemnifying Party objects to or contests all or any part of the Third Party Claim, the Indemnified Party shall be free to seek enforcement of its rights to indemnification under this Agreement with respect to such Third-Third Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) [***] after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim unless (i) the Third Party Claim has been brought or asserted by a Government Entity, (ii) there is a conflict of interest that would make it inappropriate (on advice of counsel) for the same counsel to represent both the Indemnified Party and the Indemnifying Party, (iii) such Third Party Claim relates to Taxes, or (iv) the Third Party claims seeks injunctive or equitable remedies other than monetary damages against the Indemnified Party, in which case the Indemnified Party may retain the exclusive right to defend, compromise or settle such Third Party Claim, but the Indemnifying Party will not be bound by any determination of any Third Party Claim so defended for the purposes of this Agreement or any compromise or settlement effected without its consent (which may not be unreasonably withheld).
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expensedefense, with counsel reasonably satisfactory to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based concluded (on the written advice of counsel, ) that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall or any of its Affiliates, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, or (iii) any monetary Liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, or (ii) is not entitled to defend the Third Party Claim as provided in Section 6.4(a), the Indemnified Party shall have the right but not the obligation to assume maintain its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerdefense.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Third Party Claim, including by keeping the other party reasonably informed of the status of such Third Party Claim and any related Proceedings at all stages thereof where such party is not represented by its own counsel, and by providing access to each other’s relevant business records and other documents, and employees; it being understood that the costs and expenses of the Indemnified Party relating thereto shall be Losses (but only to the extent that the Third Party Claim is ultimately subject to indemnification under this Agreement).
(e) The Indemnified Party and the Indemnifying Party shall use their respective reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying A party seeking indemnification pursuant to this Article VII (an “"Indemnified Party") shall give prompt notice to the party from whom such indemnification is sought (the "Indemnifying Party”") may have liability to of the assertion of any Indemnified Party hereunderclaim, other than those relating to Taxes (which are or the exclusive subject commencement of Article X)any action, is asserted against suit or sought to be collected from any Indemnified Party proceeding by a third party in respect of which indemnity may be sought hereunder (a “Third-"Third Party Claim”"), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, notify and will give the Indemnifying Party in writing of such Third-information with respect thereto as the Indemnifying Party Claimmay reasonably request, the amount or the estimated amount of damages sought thereunder but failure to the extent then ascertainable (which estimate give such notice shall not be conclusive relieve the Indemnifying Party of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party liability hereunder only except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of the Indemnified Party against such Third-Party Claimis actually prejudiced thereby.
(b) In the event that the The Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not exercisable by written notice to the obligationIndemnified Party within thirty (30) days of receipt of notice from the Indemnified Party of the commencement of or assertion of any Third Party Claim in respect of which indemnity may be sought hereunder, to participate assume and conduct the defense of such Third Party Claim with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided that: (i) such Third Party Claim involves (and continues to involve) solely monetary damages; (ii) the defense of such Third Party Claim by the Indemnifying Party will not, in any such defense and the reasonable judgment of the Indemnified Party, have a material adverse effect on the Indemnified Party; (iii) the Indemnifying Party makes adequate provision to employ separate counsel of its choosing. The satisfy reasonably the Indemnified Party shall participate of the Indemnifying Party's ability to satisfy the amount of any adverse monetary judgment that is reasonably likely to result, (the conditions set forth in any such defense at its expense unless clauses (i), (ii) and (iii) are collectively referred to as the "Litigation Conditions"); and (iv) the Indemnifying Party expressly agrees in writing that as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party are both named parties shall be solely obligated to satisfy and discharge the proceedings and Third Party Claim. If the Indemnifying Party does not assume the defense of such Third Party Claim in accordance with this Section, then the Indemnified Party shall have reasonably concludedmay 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 7.2(b), based on then the written advice of counsel, that representation of both parties Indemnifying Party will not be liable for any legal expenses subsequently incurred by the same counsel would Indemnified Party in connection with the defense thereof; provided however that if (A) the Litigation Conditions cease to be inappropriate due met, or (B) the Indemnifying Party fails to actual take reasonable steps necessary to defend diligently such Third Party Claim within ten (10) calendar days (or potential differing material interests between them. such shorter period as may be required to defend diligently such Third Party Claim) after receiving written notice from the Indemnified Party that the Indemnified Party believes the Indemnifying Party has failed to take such steps, then the Indemnified Party may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs or expenses paid or incurred in connection therewith.
(c) The Indemnifying Party or the Indemnified Party, as the case may be, shall have the right to participate in (but not control), at its own expense, the defense of any Third Party Claim which the other is defending as provided in this Agreement.
(d) The Indemnifying Party, if it shall have assumed the defense of any Third Party Claim as provided in this Agreement, shall not, without the prior written consent of the Indemnified Party, settleconsent to a settlement of, compromise or offer to settle or compromise the entry of any Third-judgment arising from, any such Third Party Claim; provided, however, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes Claim which does not include as an unconditional term thereof the granting giving by the person asserting such claim claimant or bringing such action of an unconditional release from liability the plaintiff to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-complete release from all liability in respect of such Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the which grants any injunctive or equitable relief. The Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-settle any Third Party Claim shall not be adversely affected by assuming Claim, the defense of such Third-Party Claim. The Indemnified Party shall which has not settle a Third-Party Claim without been assumed by the Indemnifying Party, with the written consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party and the Indemnifying Party Party, which consent shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employeesnot be unreasonably withheld or delayed.
(e) The Indemnified Party and Whether or not the Indemnifying Party chooses to defend or prosecute any Third Party Claim, all the parties hereto shall use reasonable best efforts to avoid production of confidential cooperate in the defense or prosecution thereof and shall furnish such records, information (consistent with Applicable Law)and testimony, and to cause all communications among employeesattend such conferences, counsel discovery proceedings, hearings, trials and others representing any party to a Third-Party Claim to appeals, as may be made so as to preserve any applicable attorney-client or work-product privilegesreasonably requested in connection therewith.
Appears in 1 contract
Samples: Contribution and Distribution Agreement (Bluestone Software Inc)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) 30 days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a timely Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) 30 days (or such lesser less number of days set forth in the Claim Notice as may be required by court proceeding Legal Proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings Legal Proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnifying Party shall defend such Third-Party Claim and the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall may participate in any such defense at its expense; provided, however, that such Indemnified Party shall be entitled to participate in any such defense with separate counsel at the reasonable expense unless of the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and if (i) the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themthem or (ii) the Indemnified Party assumes the defense of a Third-Party Claim after the Indemnifying Party has failed to diligently pursue a Third-Party Claim it has assumed, as provided in the first sentence of Section 7.05(c). The Indemnifying Party shall not, without the prior written consent of the Indemnified PartyParty (such consent not to be unreasonably withheld or delayed), settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim on a basis that would result in (A) the imposition of a consent Order, however, injunction or decree that no such prior written consent would materially restrict the future activity or conduct of the Indemnified Party shall or any of its Affiliates, (B) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (C) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates or (D) any monetary liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof and in connection with any of the granting by foregoing, the person asserting Indemnified Party alone shall be entitled to contest, defend, compromise and settle such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityThird-Party Claim in the first instance.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, (ii) is not entitled to defend the Third-Party Claim as a result of the Indemnified Party’s election to defend the Third-Party Claim as provided in Section 7.05(b) or (iii) after assuming the defense of a Third-Party Claim, fails to take reasonable steps necessary to defend diligently such Third-Party Claim within 10 days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld or delayed.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, documents and employees; it being understood that the costs and expenses of the Indemnified Party relating thereto shall be Losses. The party that assumes the defense and investigation of the Third Party Claim in accordance with this Agreement shall keep the other party reasonably informed of the progress of any such defense, compromise or settlement.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information Confidential Information (consistent with Applicable applicable Law), ) and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that If any written claim or demand for which an indemnifying party (an “Indemnifying Party”) Party may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim)ascertainable, any other remedy sought thereunder, any relevant time constraints relating thereto andthereto, a reasonably detailed explanation of the events giving rise to the extent practicable, such Third-Party Claim and any other material details pertaining thereto (a “Claim Notice”); provided, however, provided that the failure to timely to give a Claim Notice shall affect not relieve the rights Indemnifying Party of an Indemnified Party hereunder only its obligations hereunder, except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or been prejudiced by such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify failure. Thereafter, the Indemnified Party that it desires shall deliver to assume the defense Indemnifying Party, promptly following the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party against such relating to the Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires connection with any claim which may give rise to defend the Indemnified Party against indemnity hereunder resulting from or arising out of a Third-Party ClaimClaim solely for money damages, the Indemnifying Party, at the sole cost and expense of the Indemnifying Party, may, upon written notice given to the Indemnified Party, and subject to any rights of the issuer of Purchaser’s Insurance Policy, assume the defense of any such claim or Action; provided that prior to assuming control of such defense, the Indemnifying Party must (i) acknowledge that it would have an indemnity obligation for the Losses resulting from such Third-Party Claim as provided under this ARTICLE 9 and (ii) furnish the Indemnified Party with a written statement that Seller Representative does not reasonably believe that the Losses resulting from such Third-Party Claim would exceed the remaining portion of any Escrow Amount. If the Indemnifying Party assumes the defense of any such claim or Action, the Indemnifying Party shall have the right select counsel to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed conduct the defense of a Third-Party Claimsuch claims or legal proceedings and, at the Indemnified Party sole cost and expense of the Indemnifying Party, shall have take all necessary and appropriate steps in the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosingor settlement thereof. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such defense Action, with its own counsel and at its expense unless own expense. If the Indemnifying Party and does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date it receives written notice of such claim from the Indemnified Party: (i) the Indemnified Party are both named parties may defend against such claim or litigation at the Indemnifying Party’s expense in such manner as the Indemnified Party may deem necessary or appropriate, including, but not limited to, settling such claim or litigation on such terms as the Indemnified Party may deem appropriate, and (ii) the Indemnifying Party shall be entitled to participate in (but not control) the proceedings defense of such Action, with its counsel and at its own expense; provided, however, that the Indemnified Party shall have reasonably concludednot settle or compromise any Third-Party Claim without the prior written consent of the Indemnifying Party (such consent not to be unreasonably withheld or delayed), based on unless such settlement includes a full release of the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. Indemnifying Party from such Third-Party Claim.
(c) The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim if the terms of such settlement would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent of would apply to the Indemnified Party shall be required to any proposed settlement that involves only the payment Party, or (ii) a finding or admission of money a violation of Law by the Indemnifying Indemnified Party, includes as an unconditional term thereof the granting by the person asserting such claim . Whether or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend assumes the Indemnified Party against defense of a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of admit any liability with respect to, settle, compromise or discharge, such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of Indemnifying Party’s prior written consent. If the Indemnifying Party and/or assumes the defense of a Third-Party Claim and is in good faith contesting such Third-Party Claim, the Indemnified Party shall not unreasonably withhold its respective insurerconsent to any settlement, compromise or discharge of a Third-Party Claim that the Indemnifying Party may reasonably recommend and that by its terms (i) obligates the Indemnifying Party to pay the full amount of Losses in connection with such Third-Party Claim, other than with respect to any Losses (or portion thereof) that are not required to be paid as a result of the limitations set forth in Section 9.4 and (ii) releases the Indemnified Party in connection with such Third-Party Claim.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing reasonable access to each other’s relevant business records Books and other documentsRecords, and employees.
. Such cooperation shall include the retention and (eupon the Indemnifying Party’s request) the provision to the Indemnifying Party of Books and Records and information that are reasonably relevant to such Third-Party Claim, and making employees and Representatives available on a mutually convenient basis during normal business hours to provide additional information and explanation of any material provided hereunder. The Indemnified Party and the Indemnifying Party shall use reasonable best commercial efforts to avoid production of confidential and attorney-client privileged information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Samples: Merger Agreement (Genasys Inc.)
Third-Party Claim Indemnification Procedures. Except as otherwise provided in Section 6.10(d):
(a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) Party may have liability (except with respect to any Seller Tax Contest or other liability with respect to Taxes) to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), ) such Indemnified Party shall promptly, but in no event more than ten promptly notify Buyer (10) days following such if the Indemnified Party is a Seller Indemnified Party’s receipt of ), the Sellers Representative (if the Indemnified Party is a Buyer Indemnified Party and the Third-Party Claim, notify Claim relates to an indemnity obligation for which the Indemnifying Members would be severally liable pursuant to Section 9.2) or the Member that may have liability pursuant to such Third-Party Claim (if the Indemnified Party is a Buyer Indemnified Party and the Third-Party Claim relates to an indemnity obligation for which a Member would be solely liable pursuant to Section 9.2) in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided. However, however, that the failure timely to give a Claim Notice shall prompt notice will not affect the rights or obligations of an Indemnified the Indemnifying Party hereunder except and only to the extent that that, as a result of such failure has a material prejudicial effect on the defenses or other rights available to failure, the Indemnifying Party with respect to such Third-Party Claimwas prejudiced. The Indemnifying Party shall have thirty (30) 15 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding proceedings in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense; provided, that the Indemnifying Party shall have acknowledged in writing to the Indemnified Party its unqualified obligation to indemnify such Indemnified Party as provided hereunder with respect to such Third-Party Claim; provided further, however, that any counsel selected by the Indemnifying Party must be reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ a single separate counsel of its choosing, which counsel must be reasonably acceptable to the Indemnifying Party. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of outside counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them, in which case the Indemnified Party shall participate in such defense and employ separate counsel, which counsel must be reasonably acceptable to the Indemnifying Party, at the Indemnifying Party’s expense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim unless such settlement, however, that no such prior compromise or offer includes an unconditional written consent release of the Indemnified Party shall be required to any proposed settlement that involves only and would not materially and adversely affect the payment Indemnified Party other than as a result of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilitydamages.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by does not giving give the Indemnified Party timely notice of its desire to so defend against such Third-Party Claim or otherwisefails to diligently defend such Third-Party Claim, the Indemnified Party shall have the right right, but not the obligation obligation, to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim Claim, including indemnification for all costs and expenses associated with the Indemnified Party assuming its own defense, shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld, delayed or conditioned.
(d) Notwithstanding anything in this Section 9.5 to the contrary, no Indemnifying Party shall have the right to defend any Third-Party Claim (but may participate, at its own cost, in the defense of such claim) if such claim (i) seeks an injunction or other equitable remedies in respect of the Indemnified Party or its business, (ii) involves a plaintiff that is a material customer of the Company or that could reasonably be expected to result in a material adverse impact on the Indemnified Party’s relationship with one or more of such material customers, (iii) is a criminal claim or (iv) has a reasonable risk of resulting in a Loss that would exceed the monetary limitations set forth in Section 9.4(c), in which case the Indemnified Party may elect to assume the defense of such Third-Party Claim and such reasonable expenses shall constitute Losses payable to the Indemnified Party as set forth in this ARTICLE IX.
(e) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(ef) The Indemnified Party and the Indemnifying Party shall use commercially reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or client, work-product product, common interest or joint defense privileges. For the avoidance of doubt, nothing in this Section 9.5 shall be construed as a waiver by an Indemnified Party or an Indemnifying Party of any privilege, including any privilege associated with separate counsel as described herein.
Appears in 1 contract
Samples: Securities Purchase Agreement (EnLink Midstream Partners, LP)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Any Indemnified Party shall promptlygive written notice as promptly as is reasonably practicable to the Indemnifying Party of the assertion of any claim, or the commencement of any action, suit, proceeding, claim, arbitration or investigation, by any Person not a party hereto in respect of which indemnity intends to be sought under this Agreement; provided that the failure of the Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations under this Section 10.5 except to the extent (if any) that the Indemnifying Party shall have been actually prejudiced thereby. Following receipt of such written notice from the Indemnified Party pursuant to this Section 10.5, the Indemnified Party shall permit the Indemnifying Party, at the Indemnifying Party’s election, to assume, at its own expense, the defense of any such action, suit, proceeding, claim, arbitration or investigation with counsel selected by the Indemnifying Party (and not reasonably objected to by the Indemnified Party) if, but only if, the Indemnifying Party acknowledges in no event more than ten writing to the Indemnified Parties that it is obligated under this Agreement to indemnify them against all Losses they incur or have incurred in connection with such third party claim. The Indemnified Party shall not settle, compromise or consent to any judgment in respect of any such action, suit, proceeding, claim, arbitration or investigation without the prior written consent of the Indemnifying Party (10which consent shall not be unreasonably withheld, delayed or conditioned).
(b) days following such Indemnified Following the Indemnifying Party’s receipt election to assume the defense of a Third-any action, suit, proceeding, claim, arbitration or investigation pursuant to Section 10.5(a), (i) the Indemnified Party Claim, notify shall deliver to the Indemnifying Party in writing a timely fashion, copies of all notices and documents (including court papers) received by the Indemnified Party relating to such Third-action, suit, proceeding, claim, arbitration or investigation and (ii) the Indemnified Party Claimshall use its commercially reasonable efforts at the Indemnifying Party’s expense to cooperate in the defense or prosecution thereof as reasonably requested by the Indemnifying Party in the context of the relevant action, suit, proceeding, claim, arbitration or investigation (including the amount or the estimated amount and nature of damages sought thereunder thereunder). Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the extent then ascertainable (which estimate shall not be conclusive Indemnifying Party of the final amount records and information that are reasonably relevant to such action, suit, proceeding, claim, arbitration or investigation, and making a reasonable number of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto andemployees reasonably available on a mutually convenient basis, to the extent practicable, provide additional information and explanation of any other material details pertaining thereto (a “Claim Notice”)provided hereunder; provided, however, that the failure timely to give foregoing shall be at the Indemnifying Party’s expense and shall be organized in a Claim Notice manner as shall affect not unreasonably disrupt the rights normal operations of an the Indemnified Party hereunder only Party’s business having regard to the extent that context in which such failure has a material prejudicial effect on cooperation is requested and of the defenses relevant action, suit, proceeding, claim, arbitration or other rights available to investigation (including the Indemnifying Party with respect to such Third-Party Claim. amount and nature of the damages sought thereunder).
(c) The Indemnifying Party shall have thirty (30) days (or such lesser number be liable for the reasonable fees and expenses of days set forth in the Claim Notice as may be required counsel employed by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume for any period during which the Indemnifying Party has not assumed the defense of a action, suit, proceeding, claim, arbitration or investigation for which the Indemnified Party against such Third-Party Claim.
is entitled to indemnification hereunder, except to the extent (bif any) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party been actually prejudiced by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party’s failure to give timely notice of such action, settlesuit, compromise proceeding, claim, arbitration or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written consent of the Indemnified Party shall be investigation as required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilitySection 10.5(a).
(cd) If the Indemnifying Party elects not assumes the defense of any action, suit, proceeding, claim, arbitration or investigation pursuant to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwiseSection 10.5(a), the Indemnified Party shall have the right (but not the obligation duty) to assume participate in such defense and to employ counsel, at its own defense; it being understood that expense, separate from the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected counsel employed by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employeesParty.
(e) The Indemnified Party and If the Indemnifying Party shall use reasonable best efforts does not elect to avoid production assume defense of confidential information (consistent with Applicable Lawany action, suit, proceeding, claim, arbitration or investigation pursuant to Section 10.5(a), the Indemnifying Party may nevertheless participate (but not control) and employ its own counsel (not reasonably objected to cause all communications among employeesby the Indemnified Party), counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client at its expense, in the defense of such action, suit, proceeding, claim, arbitration or work-product privilegesinvestigation.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party the Seller, the Purchaser or the Company (each, an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) calendar days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) calendar days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Samples: Share Purchase Agreement
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party a Party (in such capacity, an “Indemnifying PartyPerson”) may have liability to any Indemnified Party Person hereunder, other than those relating to Taxes (which are the exclusive subject of Article XSection 5.7), is asserted against or sought to be collected from any Indemnified Party Person by a third party (a “Third-Party Claim”), such Indemnified Party Person shall promptly, but in no event more than ten (10) days promptly following such Indemnified PartyPerson’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing Person of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive and a reasonably detailed explanation of the final amount of events giving rise to such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto Claim (a “Claim Notice”); provided, however, that the failure to timely to give a Claim Notice shall affect not relieve the rights Indemnifying Person of an Indemnified Party hereunder only its obligations hereunder, except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect Person shall have been actually and materially prejudiced by such failure.
(b) The Indemnifying Person will have the right at its expense to such defend the Indemnified Person against the Third-Party Claim. The Indemnifying Party shall have Claim with counsel reasonably satisfactory to the Indemnified Person; provided, that within thirty (30) days (or such lesser number of days set forth in after the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt Indemnified Person has given notice of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of the Indemnified Party against such Third-Party Claim.
Claim the Indemnifying Person (bi) In acknowledges in writing to the event Indemnified Person its unqualified obligation to indemnify the Indemnified Person as provided hereunder and (ii) provides the Indemnified Person with evidence reasonably acceptable to the Indemnified Person that the Indemnifying Party notifies Person will have the Indemnified Party within the Notice Period that it desires financial resources to defend against the Indemnified Party against a Third-Party ClaimClaim and fulfill its indemnification obligations hereunder. Notwithstanding the foregoing, the Indemnifying Party Person shall not have the right to defend assume the Indemnified Party by appropriate proceedings and shall have the sole power to direct conduct and control of such defense at its expense. Once if the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming which the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent Indemnifying Person seeks to assume control (A) seeks monetary relief in excess of the Indemnifying Party and/or its respective insurer.
Person’s obligations hereunder or any non-monetary relief (d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and an injunction or other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Lawequitable relief), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.(B) involves criminal allegations,
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Third-Party Claim Indemnification Procedures. (ai) In the event that If any written claim Third Party notifies any Purchaser Indemnified Party or demand for which an indemnifying party Seller Indemnified Party (an as applicable, and “Indemnifying Indemnified Party”) may have liability with respect to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party matter (a “Third-Third Party Claim”), ) which may give rise to a claim by such Indemnified Party shall promptly, but in no event more than ten for indemnification against the indemnitor (10the “Indemnitor”) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claimunder this Section 7.02, the amount or Indemnified Party shall give the estimated amount of damages sought thereunder Indemnitor prompt written notice thereof. The failure to the extent then ascertainable (which estimate give such prompt written notice shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); providednot, however, that relieve the failure timely to give a Claim Notice shall affect the rights Indemnitor of an Indemnified Party hereunder its indemnification obligations, except and only to the extent that the Indemnitor demonstrates that the Indemnitor’s ability to defend or resolve such failure has a material prejudicial effect Third Party Claim is materially and adversely affected thereby. Such written notice by the Indemnified Party shall describe in reasonable detail (based on the defenses or other rights information then available to the Indemnifying Indemnified Party) the Third Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (Claim and the estimated amount, if reasonably practicable, of the Loss that has been or such lesser number of days set forth in the Claim Notice as may be required sustained by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of the Indemnified Party against such Third-Party ClaimParty.
(bii) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall The Indemnitor will have the right to defend the Indemnified Party by appropriate proceedings and shall have against the sole power to direct and control such defense at its expense. Once Third Party Claim with counsel of the Indemnifying Indemnitor’s choice, so long as (A) the Indemnitor notifies the Indemnified Party, within ten (10) Business Days after the Indemnified Party has duly assumed given notice of the Third Party Claim to the Indemnitor (or by such earlier date as may be necessary under applicable procedural rules in order to file a timely appearance and response) that the Indemnitor is assuming the defense of a Third-such Third Party Claim, Claim and acknowledges its indemnification obligations hereunder and provides the Indemnified Party shall have with evidence of the rightfinancial capacity of such Indemnitor to conduct the defense of such Third Party Claim at its sole cost; (B) the Indemnitor conducts the defense of the Third Party Claim actively and diligently in good faith and at its own cost and expense; and (C) the Third Party Claim (1) does not involve injunctive, but equitable, or other non-monetary relief against the Indemnified Party, (2) does not relate to or otherwise arise in connection with any criminal or regulatory Proceeding, and (3) is not one in which an adverse judgment would, in the obligationopinion of the outside counsel to Indemnified Party, be materially adverse to participate in any such defense and to employ separate counsel of its choosing. the Indemnified Party’s business.
(iii) The Indemnified Party shall participate in any such defense may retain separate co-counsel at its expense unless the Indemnifying Party sole cost and the Indemnified Party are both named parties expense.
(iv) The Indemnitor will not consent to the proceedings and the Indemnified entry of any judgment or enter into any compromise or settlement with respect to any Third Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, Claim without the prior written consent of the Indemnified PartyParty unless such judgment, settlecompromise, compromise or offer settlement (A) includes, as a condition to settle any settlement or compromise any Third-Party Claim; providedother resolution, however, that no such prior written consent a complete and irrevocable general release of the Indemnified Party shall be required to any proposed settlement that and its Affiliates from all Liabilities in respect of such Third Party Claim, and (B) involves only the payment no admission of money wrongdoing by the Indemnifying PartyIndemnified Party or any of its Affiliates and, includes as an unconditional term thereof without limiting the granting generality of the forgoing, no finding or admission of any violation of any Law or the rights of any Person by the person asserting such claim Indemnified Party or bringing such action any of an unconditional release from liability its Affiliates.
(v) In the event that the Indemnitor fails to all Indemnified Parties assume the defense of a Third Party Claim in accordance with Section 7.02(e)(ii) or following the Indemnitor’s assumption of the defense of a Third Party Claim in accordance with Section 7.02(e)(ii) any of the conditions set forth in Section 7.02(e)(ii) becomes unsatisfied with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Third Party elects not to defend Claim, then the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice may assume control of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim to the entire exclusion (including with respect to the settlement or compromise of, or entry of judgment in, such Third Party Claim. The Indemnified Party shall not settle a Third-Party Claim without ) and at the consent entire expense of the Indemnifying Party and/or its respective insurerIndemnitor.
(dvi) The Indemnified Party and Parties shall take all commercially reasonable steps to mitigate any Losses upon becoming aware of any event or circumstance that could be reasonably expected to, or does, give rise thereto, in each case, to the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employeesextent required under applicable Law.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
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Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure to timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party , but the fees and expenses of such counsel shall participate in any such defense be at its own expense unless (i) the Indemnifying Party and the Indemnified Party are both mutually agree to the retention of such counsel or (ii) the named parties to in such Third-Party Claim (including any impleaded parties) include both the proceedings Indemnifying Party and the Indemnified Party, and in the reasonable judgment of the Indemnified Party’s counsel, representation of the Indemnifying Party and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material defenses or material conflicts of interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement Table of Contents that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Northwest Bancshares, Inc.)
Third-Party Claim Indemnification Procedures. (a) In the event that any written Legal Proceeding is instituted or that any claim or demand is asserted by any third party for which an indemnifying party Buyer (in respect of claims made pursuant Section 9.2) or Seller and the Shareholder (in respect of claims made pursuant to Section 9.3) (an “Indemnifying Party”) may have liability to any a Person pursuant to this Article IX (an “Indemnified Party hereunderParty”) (such Legal Proceeding, other than those relating to Taxes (which are the exclusive subject of Article X)claim or demand, is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall will promptly, but in no event more than ten (10) 30 days following such Indemnified Party’s receipt of a Third-Third Party Claim, promptly notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto Claim (a “Claim Notice”); provided, however, that the failure to timely to give a Claim Notice shall will affect the rights of an Indemnified Party hereunder only if and to the extent that such failure has a material an actual prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party shall will have thirty (30) 20 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matterLegal Proceeding) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim, which may include a reservation of rights on behalf of the Indemnifying Party.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall will have the right to defend the Indemnified Party by appropriate proceedings and shall will have the sole power to direct and control such defense at its expensedefense. Once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall will have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate Party’s participation in any such defense will be at its own expense unless (i) representation of the Indemnified Party’s interests by the Indemnifying Party’s counsel would involve an actual conflict of interest or (ii) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party and has failed to diligently pursue a Third Party Claim it has assumed, as provided in the first sentence of Section 9.4(c), in which either case the Indemnifying Party will pay the expenses of the Indemnified Party are both named parties Party’s counsel to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice extent of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themits indemnification obligations hereunder. The Indemnifying Party shall will not, without the prior written consent of the Indemnified PartyParty (which consent will not be unreasonably conditioned, delayed, or withheld), settle, compromise or offer to settle or compromise any Third-Third Party Claim; providedClaim on a basis that would result in (A) the imposition of a consent Order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall or any of its Affiliates, (B) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (C) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates, or (D) any monetary liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party. The Indemnified Party will cooperate in the defense of any Third Party Claim, includes including by providing access to such personnel, support and relevant business records and other documents, as an unconditional term thereof the granting may be reasonably requested by the person asserting Indemnifying Party in connection with such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilitydefense.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwiseotherwise or (ii) after assuming the defense of a Third Party Claim, fails to use its reasonable best efforts to defend diligently such Third Party Claim within ten Business Days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall will have the right but not the obligation to assume its own defense; , in which case the Indemnified Party will have sole power to direct and control such defense (it being understood that the Indemnified Party’s right to indemnification for a Third-Third Party Claim shall will not be adversely affected by assuming the defense of such Third-Third Party Claim). The In such case, the Indemnified Party shall will not settle, compromise or offer to settle a Third-or compromise the Third Party Claim without the prior written consent of the Indemnifying Party and/or its respective insurerParty, which consent will not be unreasonably conditioned, delayed, or withheld.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall will use their reasonable best efforts to avoid production of confidential information Confidential Information (consistent with Applicable applicable Law), ) and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (other than a claim by a Taxing authority for Taxes) (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten thirty (1030) days following such Indemnified Party’s receipt of a Third-Third- Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial an adverse effect on the resolution of the Third-Party Claim or on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim. Notwithstanding anything to the contrary contained herein, to the extent that Buyer reasonably expects that the Losses resulting from a Third-Party Claim would not, when aggregated with all other Losses for which Seller has previously indemnified Buyer Indemnified Parties pursuant to this Agreement or would reasonably be expected to indemnify Buyer Indemnified Parties in the future (based on information available at such time), exceed the Indemnity Threshold, Buyer shall have the right to defend such Third-Party Claim and shall have the sole power to direct and control such defense.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expensedefense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosingdefense. The If the Indemnified Party shall participate in any such defense defense, it shall participate at its sole cost and expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties by the same counsel would be inappropriate inappropriate, due to actual a non-waivable conflict, or potential differing material interests between them(ii) the Indemnified Party assumes the defense of a Third-Party Claim after the Indemnifying Party has failed to diligently pursue a Third-Party Claim it has assumed, in which case the Indemnifying Party shall be liable for the reasonable and documented fees and expenses of one separate counsel (in addition to any necessary local counsel) to the extent such Third-Party Claim is subject to indemnification or reimbursement under Section 8.2 or Section 8.3. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, howeverinjunction or decree that would restrict the future activity or conduct of the Indemnified Party, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party, (iii) a finding or admission that no such prior written consent would have an adverse effect on other claims made or threatened against the Indemnified Party, or (iv) except to the extent within the amounts set forth in Section 8.3(b) if applicable, any monetary liability of the Indemnified Party shall that will not be required to any proposed settlement that involves only the payment of money paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, (ii) is not entitled to defend the Third-Party Claim as a result of the Indemnified Party’s election to defend the Third-Party Claim as provided in Section 8.4(b) hereof, or (iii) after assuming the defense of a Third-Party Claim, fails to take reasonable steps necessary to defend diligently such Third-Party Claim, the Indemnified Party shall have the right but not the obligation to assume provide its own defensedefense and shall consult with the Indemnifying Party regarding the strategy for defense of such claim, including with respect to the Indemnified Party’s choice of legal counsel; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming whether it assumes the defense of such Third-Party Claim. The Indemnified Party shall not settle have no liability with respect to a Third-Party Claim without the consent settled in violation of the Indemnifying Party and/or its respective insurerlast sentence of Section 8.4(b).
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employeesemployees (including, if necessary, availability for depositions and testifying); it being understood that the reasonable and documented costs and expenses of the Indemnified Party relating thereto shall be considered Losses. The Indemnified Party and the Indemnifying Party shall keep each other fully informed with respect to the status of such Third-Party Claim.
(e) The Indemnified Party and the Indemnifying Party shall use commercially reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privilegesprivileges (if applicable).
(f) Each of Buyer and Seller hereby consents to the non-exclusive jurisdiction of any court in which a Third-Party Claim is brought for purposes of any claim for indemnification or reimbursement with respect to such Third-Party Claim or the matters alleged therein.
Appears in 1 contract
Samples: Securities Purchase Agreement (Verizon Communications Inc)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”“) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), Section 6.9) is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”“), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, promptly notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”“); provided, however, that the failure to timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party shall have thirty (30) 30 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”“) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim with counsel approved by the Indemnified Party (which approval may not be unreasonably withheld, delayed or conditioned); it being understood that by assuming the defense of a Third Party Claim the Indemnifying Party shall conclusively acknowledge its obligation to indemnify the Indemnified Party with respect to all matters in such Third Party Claim, other than to the extent of any Losses caused by the bad faith act, willful misconduct, gross negligence or violation of the terms of this Agreement by the Indemnified Party or with respect to any and all Third Party Claims that are settled by the Indemnified Party without the prior written consent of the Indemnifying Party.
(b) In the event that the Indemnifying Party notifies in writing the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense defense, with counsel satisfactory to the Indemnified Party (which approval may not be unreasonably withheld, delayed or conditioned) at its the Indemnifying Party’s expense; provided, that, in the event that the Indemnifying Party under this Section 9.4 is a Stockholder and to the extent that the Losses for which indemnification is sought from all Stockholders exceeds $100,000 and the Escrow Account has been exhausted, at the reasonable request of the Indemnified Party, the Principal Stockholders shall be obligated to provide the Indemnified Party with reasonably satisfactory security adequate (in such Indemnified Party’s reasonable discretion) to protect such Indemnified Party against any Losses for which indemnification is sought. Once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosingchoosing at such Indemnified Party’s expense. The Indemnified Party shall participate in any such defense at its expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice opinion of its outside counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential reasonably likely differing material interests between themthem or (ii) as provided in the first sentence of Section 9.4(c). The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; provided, however, Claim on a basis that no such prior written consent would result in (i) restriction on the future activity or conduct of the Indemnified Party shall or any of its Affiliates, (ii) a finding or admission of a violation of Law, (iii) a finding or admission that would have an adverse effect on other claims, that are not fully indemnified hereunder, made or threatened against the Indemnified Party or any of its Affiliates or (iv) any monetary liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely written notice of its desire to so defend or otherwiseotherwise or (ii) after assuming the defense of a Third Party Claim, fails to take reasonable steps necessary to defend diligently such Third Party Claim within 10 days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim. The Indemnified Party shall not settle a Third-Third Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in all reasonable respects in order to ensure the proper and adequate defense of a Third-Third Party Claim, including by providing reasonable access to each other’s relevant business records and other documents, and employees; it being understood that the costs and expenses of the Indemnified Party relating thereto shall be Losses.
(e) The Indemnified Party and the Indemnifying Party shall keep each other fully informed concerning the status of such Third Party Claim and any related proceedings at all stages thereof.
(f) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(i) Notwithstanding the terms of this Section 9.4, and consistent with the terms of Section 6.5 above (ISRA), the Parent Indemnified Parties reserve the right (but not the obligation) to defend at the reasonable cost and expense of the Indemnifying Party any Third Party Claim, directly or indirectly, relating to, arising out of or resulting from the matters set forth on Section 9.2(a)(vi) of the Disclosure Schedule or a breach of a representation or warranty under Section 4.21 (Environmental). Parent Indemnified Parties shall give written notice to Stockholders’ Representative of any Third Party Claim for which Parent Indemnified Parties are assuming the defense; it being understood that neither the Parent Indemnified Parties’ right to indemnification nor the scope of any indemnification shall be adversely affected by assuming the defense of such Third Party Claim.
(ii) Any Losses incurred by the Parent Indemnified Parties in the performance of any investigation or remediation pursuant to this Section 9.4(g) must be reasonably necessary to defend the Third Party Claim in question. The Parent Indemnified Parties shall keep the Indemnifying Party reasonably informed concerning the status of any Third Party Claim the defense of which was assumed pursuant to this Section 9.4(g) and shall provide all information concerning any such Third Party Claim that Stockholders’ Representative may reasonably request, including without limitation information concerning any investigation or remediation being performed by a Parent Indemnified Party. Without limiting the foregoing, the Parent Indemnified Parties shall provide the Stockholders’ Representative with copies of all documents to be submitted to any Governmental Entity in connection with any such investigation or remediation not less than five (5) Business Days prior to submission to the Governmental Entity. Notwithstanding the above, Parent Indemnified Parties may submit documents to a Governmental Entity in connection with any investigation or remediation without providing Stockholders’ Representative with copies five (5) Business Days prior, if Parent Indemnified Parties determine in their reasonable discretion that such submission is necessary, and if Parent Indemnified Parties exercise reasonable best efforts to provide a copy of any such submission to Stockholders’ Representative prior to submission to such Governmental Entity.
(iii) Upon request by the Stockholders’ Representative, the Parent Indemnified Parties shall cause the Company to assign to the Indemnifying Party any claims or causes of action against any third party to recover any costs incurred by the Indemnifying Party in connection with any indemnity for matters to which this Section 9.4(g) applies, whether or not such matters have been assumed as provided hereunder.
(h) Notwithstanding the terms of this Section 9.4, the Parent Indemnified Parties reserve the right (but not the obligation) to defend at the reasonable cost and expense of the Indemnifying Party any Third Party Claim, directly or indirectly, relating to, arising out of or resulting from (i) the matters set forth in Section 9.2(a)(vi) of the Disclosure Schedule or a breach of a representation or warranty under Section 4.21 (Environmental), or (ii) allegations of non-compliance with any Environmental Law in connection with operation of the Business or the need for any response to Environmental Conditions at any property owned or leased by Phoenix at or prior to the Effective Time. A Parent Indemnified Party shall give written notice to Stockholders’ Representative of any Third Party Claim for which such Parent Indemnified Party is assuming the defense; it being understood that neither the Parent Indemnified Party’s right to indemnification nor the scope of any indemnification shall be adversely affected by assuming the defense of such Third Party Claim.
Appears in 1 contract
Samples: Merger Agreement (Visant Corp)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) Party may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), ) such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party whom indemnification is sought in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided. However, however, that the failure timely to give a Claim Notice shall prompt notice will not affect the rights or obligations of an Indemnified the Indemnifying Party hereunder except and only to the extent that that, as a result of such failure has a material prejudicial effect on the defenses or other rights available to failure, the Indemnifying Party with respect to such Third-Party Claimwas prejudiced. The Indemnifying Party shall have thirty (30) 15 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matterany appropriate proceedings) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim. For purposes of this Article IX, any existing or future claims related to Taxes under Section 6.7 or the Retained Liabilities shall be subject to the same procedures as Third-Party Claims.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of outside counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them, in which case the Indemnified Party may participate in such defense and employ a single separate counsel at the Indemnifying Party’s expense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall be required to or any proposed settlement that involves only of its Affiliates or (ii) a finding or admission of a violation of Law or violation of the payment rights of money any Person by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim Indemnified Party or bringing such action any of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityits Affiliates.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right right, but not the obligation obligation, to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, documents and employees.
(e) The Indemnified Party and the Indemnifying Party shall use commercially reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorneysolicitor-client privileges. For the avoidance of doubt, nothing in this Section 9.5 shall be construed as a waiver by an Indemnified Party or work-product privilegesan Indemnifying Party of any privilege, including any privilege associated with separate counsel as described herein.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability Liability to any Indemnified Party hereunderhereunder arises from the assertion in writing of any credible threat to initiate any Proceeding, other than those relating to Taxes or the commencement of any Proceeding, by a Person that is not a party hereto (which are the exclusive subject or an Affiliate of Article X), is asserted any such party) against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, promptly notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”)) and shall provide a copy of such Claim Notice to the Escrow Agent; provided, however, that the failure timely to give a Claim Notice shall affect not relieve the rights Indemnifying Party of an any Liability that it may have to any Indemnified Party hereunder only Party, except to the extent that the Indemnifying Party demonstrates that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party shall have a period of thirty (30) days within which to object to or contest such Third Party Claim; provided, however, that no action taken, or not taken, by the Indemnified Party with respect to or relating in any way to the Claim Notice, the Third Party Claim or the facts underlying such Third Party Claim prior to the expiration of such thirty (30) days period shall impact, reduce or otherwise harm such Indemnified Party’s right to indemnification pursuant to this Article VI. If the Indemnifying Party does not object to or contest such Third Party Claim within such thirty (30) day period, the Indemnifying Party will be deemed to have accepted the Third Party Claim and deemed to agree that the Indemnified Party is entitled to receive all or any portion of the requested Losses. If the Indemnifying Party (i) provides written notice to the Indemnified Party and the Escrow Agent that the Indemnifying Party agrees that the Indemnified Party is entitled to receive all or any portion of the requested Losses or (ii) the Indemnifying Party is deemed to have accepted a Third Party Claim pursuant to the preceding sentence, Parent, on behalf of the Sellers, and Swiss Buyer shall provide written notice to the Escrow Agent instructing the Escrow Agent to release any relevant amount of the Escrow Funds or Tooling Escrow Funds, as applicable, to Swiss Buyer. If the Indemnifying Party objects to or contests all or any part of the Third Party Claim, the Indemnified Party shall be free to seek enforcement of its rights to indemnification under this Agreement with respect to such Third Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (with a copy of such notice to the Escrow Agent) that it desires to assume the defense of defend the Indemnified Party against such ThirdThird Party Claim unless (i) the Indemnified Party has notified the Indemnifying Party in the Claim Notice that it has determined in good faith that there is a reasonable probability that such Third Party Claim may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Third Party Claim has been brought or asserted by a Government Entity, or (iii) the Third Party Claim seeks or could, if resolved in the favor of the asserting or claiming party, reasonably be expected to result in the award or imposition of preliminary, temporary or permanent injunctive relief, specific performance, equitable relief or non-monetary damages, in which case the Indemnified Person may assume the exclusive right to defend, compromise or settle such Third Party Claim; it being understood that by assuming the defense of a Third Party Claim the Indemnifying Party shall conclusively acknowledge its obligation to indemnify the Indemnified Party with respect to all of such Third Party Claim and withdraws any prior objection to or contest of the Third Party Claim, if any.
(b) In the event that the Indemnifying Party notifies the Indemnified Party (with a copy to the Escrow Agent) within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense defense, with counsel reasonably satisfactory to the Indemnified Party, at its sole expense. Once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and (i) the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material conflict of interests between them, or (ii) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, as provided in the first sentence of Section 6.4(c), in which case the Indemnifying Party shall be responsible for all costs and expenses of the Indemnified Party with respect to such defense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall or any of its Affiliates, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (iii) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates, or (iv) any monetary Liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, (ii) is not entitled to defend the Third Party Claim as a result of the Indemnified Party’s election to defend the Third Party Claim as provided in Section 6.4(a), or (iii) after assuming the defense of a Third Party Claim, fails to take reasonable steps necessary to defend diligently such Third Party Claim within five (5) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense defense; it being further understood that that the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party; provided, however, that if the Indemnifying Party is not entitled to defend the Third Party Claim as a result of such Third-the Indemnified Party’s election to defend the Third Party Claim. The Claim as provided in Section 6.4(a), the Indemnified Party shall not settle a Third-agree to any compromise or settlement of such Third Party Claim in an amount that exceeds the Escrow Amount without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed; it being understood that the failure by the Indemnifying Party and/or its respective insurerto consent to any such compromise or settlement within thirty (30) days of notice thereof shall be unreasonable, unless such Indemnifying Party provides written reasons for such failure to consent, with sufficient detail, within such thirty (30) day period.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Third Party Claim, including by keeping the other party fully informed of the status of such Third Party Claim and any related Proceedings at all stages thereof where such party is not represented by its own counsel, and by providing access to each other’s relevant business records and other documents, and employees; it being understood that the costs and expenses of the Indemnified Party relating thereto shall be Losses.
(e) The Indemnified Party and the Indemnifying Party shall each use reasonable best efforts its Best Efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(f) Notwithstanding any provision of this Agreement to the contrary, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which a proceeding in respect of a Third-Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such proceeding or the matters alleged therein and agree that process may be served on each such Indemnifying Party with respect to such a claim anywhere in the world.
Appears in 1 contract
Samples: Asset Purchase Agreement (Mad Catz Interactive Inc)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party a Person from whom indemnification is sought under this Article IX (an the “Indemnifying Party”) may have liability to any Person claiming indemnification under this Article IX (the “Indemnified Party hereunderParty”) hereunder (which, other than those relating to Taxes (for the avoidance of doubt, shall not include any claim for which are the exclusive subject of Article X), Indemnified Party’s sole recourse is under the R&W Insurance Policy) is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptlyshall, but in no event more than ten (10) days promptly following such Indemnified Party’s receipt of a Third-Third Party Claim, notify the Indemnifying Party in writing of such Third-Third Party ClaimClaim including reasonable details with respect thereto, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim)ascertainable, any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a such Claim Notice shall affect not relieve the rights Indemnifying Party of an Indemnified Party hereunder only its obligations hereunder, except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect is actually and materially damaged or prejudiced as a result of such failure to such Thirdgive timely notice vis-Party Claimà-vis its rights and obligations hereunder or otherwise. The Subject to the limitations set forth in Section 9.2(b), the Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the a Claim Notice (to assume the “Notice Period”) conduct and control, through counsel reasonably acceptable to notify the Indemnified Party that it desires to assume and at the expense of the Indemnifying Party, of the settlement or defense of the applicable Third Party Claim, and the Indemnified Party against such Third-shall cooperate with the Indemnifying Party Claim.
(b) In the event in connection therewith; provided, that the Indemnifying Party notifies shall permit the Indemnified Party within to participate in such settlement or defense through counsel chosen by such Indemnified Party; provided, further, that the Notice Period that it desires to defend fees and expenses of such counsel shall be borne by such Indemnified Party. In the Indemnified event the Indemnifying Party against assumes conduct and control of a Third-Third Party Claim, the Indemnifying Party shall have not, except with the right to defend consent in writing of the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed), enter into any settlement or consent to entry of any judgment that (x) imposes any injunctive relief or other equitable relief against the Indemnified Party, or (y) does not include as a term thereof the giving by appropriate proceedings the Person(s) asserting such Claim against the Indemnified Party of an express and shall have the sole power unconditional release from all liability with respect to direct and control such defense at its expenseThird Party Claim. Once So long as the Indemnifying Party has duly assumed is reasonably contesting any such Third Party Claim in good faith, the Indemnified Party shall not pay or settle any such Third Party Claim; provided, that if the Indemnified Party does pay or settle such Third Party Claim it shall waive any right to indemnity by the Indemnifying Party for the Losses set forth in the Claim Notice solely with respect to such matters that have been paid or settled unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Claim Notice that it elects to undertake the defense of a Third-the applicable Third Party Claim, the Indemnified Party shall have the right, but not right to contest the obligation, to participate in any such defense and to employ separate counsel Claim at the expense of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and Party, provided that the Indemnified Party shall have reasonably concludednot enter into any settlement of, based on the written advice or consent in writing to entry of counselany judgment with respect to, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying such Third Party shall notClaim, without the prior written consent of the Indemnifying Party (which shall not be unreasonably withheld, conditioned or delayed). [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(b) Notwithstanding anything in Section 9.2(a) to the contrary, the Indemnified Party will have the right to conduct and control, through counsel of its choosing and at the expense of the Indemnifying Party, the defense, compromise and settlement of any Third Party Claim if (i) such Third Party Claim seeks an injunction or other equitable relief against the Indemnified Party or alleges a criminal violation, (ii) in the reasonable opinion of counsel to the Indemnified Party, settlea conflict or potential conflict exists between the Indemnified Party and the Indemnifying Party, or (iii) the R&W Insurance Provider has exercised a right to defend the Third Party Claim under the R&W Insurance Policy. Additionally, the Indemnifying Party will lose its right to contest, defend, litigate and settle the Third Party Claim if it fails to accept a tender of the defense of the Third Party Claim according to Section 9.2(a). In such event, the Indemnified Party will have the right to conduct and control, through counsel of its choosing and at the expense of the Indemnifying Party, the defense, compromise or offer to settle or compromise settlement of any Third-such Third Party Claim; provided, however, that no at least fourteen (14) days prior to any such settlement, written notice of its intention to settle is given to the Indemnifying Party during which settlement shall be subject to the prior written consent of the Indemnifying Party (which shall not be unreasonably withheld, conditioned or delayed) if during such fourteen (14) days the Indemnifying Party acknowledges that it is responsible to indemnify such Indemnified Party shall be required to any proposed settlement that involves only the payment of money by for Losses incurred in connection therewith. If the Indemnifying Party, includes as an unconditional term thereof within thirty (30) days after written notice of any Third Party Claim (or sooner if the granting by nature of the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Third Party Claim so requires), elects not to defend the Indemnified such Third Party against a Third-Party Claim, whether by Claim (or is not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation entitled to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming or continue the defense of such Third-Third Party Claim. The ) or thereafter fails or ceases to defend such Third Party Claim, actively (given the nature of the case) and in good faith, then the Indemnified Party shall not settle a Third-will (upon further advance written notice of at least three (3) days) have the right to undertake the defense, compromise or settlement of such Third Party Claim without as it deems appropriate and at the consent expense of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party Party, or consent to the entry of a judgment with respect thereto, and the Indemnifying Party shall cooperate in order thereafter have no right to ensure undertake the proper and adequate defense of a Third-Party Claimdefense, including by providing access to each other’s relevant business records and other documents, and employeescompromise or settlement thereof.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any party seeking indemnification pursuant to this Article X (an “Indemnified Party hereunderParty”), other than those relating to Taxes (which are the exclusive subject of Article XSection 7.14(c)), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the applicable Indemnifying Party (it being understood that all notices to be provided to the Holders as an Indemnifying Party shall be provided to the Holders’ Representative) in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure to timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. Notwithstanding anything to the contrary contained herein, if more than one of the Holders are Indemnified Parties or Indemnifying Parties, then the terms “Indemnified Party” and “Indemnifying Party” (to the extent referenced in this Agreement in respect of actions required to be taken, or notices required to be given, to or by such Indemnified Parties or Indemnifying Parties, but not in respect of indemnification obligations of such Indemnifying Parties or the right to indemnification of such Indemnified Parties) shall mean the Holders’ Representative acting on behalf of such Holders, and each such Holder shall be responsible for communicating on a timely basis with the Holders’ Representative in connection therewith. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim. The Indemnifying Party will keep the Indemnified Party reasonably advised of the status of such Third-Party Claim and the defense thereof.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense defense, at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosingchoosing at the Indemnified Party’s sole cost and expense. The Indemnified Party shall participate in any such defense at its sole cost and expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Indemnifying Party shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them, or (ii) the Indemnified Party assumes the defense of a Third-Party Claim after the Indemnifying Party has failed to diligently pursue a Third-Party Claim it has assumed, as provided in the first sentence of Section 10.4(c). The Indemnifying Party shall not, without the prior written consent of the Indemnified PartyParty (which shall not be unreasonably withheld, conditioned or delayed), settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim on a basis that (A) contains an admission of liability on the part of the Indemnified Party or any of its Affiliates, however, (B) does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of an unconditional release from all liability in respect of such Third-Party Claim or (C) would impose a judgment that no such provides for anything other than monetary damages that are indemnified in accordance with this Article X (subject to Section 10.7). The Indemnifying Party shall (i) not encumber any of the material assets of any Indemnified Party or agree to any restriction or condition that would apply to or materially adversely affect any Indemnified Party or the conduct of any Indemnified Party’s business without the prior written consent of the Indemnified Party (which shall not be required to any proposed settlement that involves only the payment of money by the Indemnifying Partyunreasonably withheld, includes as an unconditional term thereof the granting by the person asserting such claim conditioned or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilitydelayed).
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Party Claim, whether Claim by not giving the Indemnified Party timely notice of its desire to so defend pursuant to Section 10.4(a) or otherwise(ii) after assuming the defense of a Third-Party Claim, fails to take reasonable steps necessary to defend diligently such Third-Party Claim within ten (10) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Indemnified Party and Notwithstanding anything in this Agreement to the Indemnifying Party shall cooperate in order to ensure contrary, as promptly as reasonably practicable following receipt by the proper and adequate defense Acquiror of a Third-Party ClaimClaim Notice or a written notice by Holding, including Holding II or the Holders’ Representative of a demand or inquiry by providing access a Governmental Authority, or subpoena or other legal process served by any Person, relating to each other’s relevant business records and other documentsany Transferred Company, the Acquiror shall, and employees.
(e) The Indemnified Party shall cause each Transferred Company to, retain documents that are then within the Acquiror’s or any Transferred Company’s possession or control and the Indemnifying Party shall use reasonable best efforts reasonably related to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a such Third-Party Claim to be made so or such other demand or other legal process for a period of time that Holding or the Holders’ Representative reasonably determines, in consultation with the Acquiror, after taking into account all relevant facts and circumstances (each such period, a “Claim Notice Period”). For the purposes of this Section 10.4(d), the term “documents” is defined as to preserve any applicable attorney-client synonymous with the term “documents or work-product privileges.electronically stored information” in Federal Rule of Civil Procedure 34
Appears in 1 contract
Samples: Contribution and Exchange Agreement
Third-Party Claim Indemnification Procedures. (a) In the event that Upon any written Indemnified Party’s receipt of notice of assertion of any claim or demand by a third party against an Indemnified Party for which an indemnifying party (an “Indemnifying Party”) Party may have liability to any Indemnified Party hereunder, other than those relating pursuant to Taxes (which are the exclusive subject of this Article X), is asserted against or sought to be collected from any Indemnified Party by a third party IX (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, promptly notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto Claim (a “Claim Notice”); provided, however, that the failure to timely to give a Claim Notice shall not affect the rights of an Indemnified Party hereunder only hereunder, except to the extent that such failure has a material prejudicial effect on materially prejudices the defenses Indemnifying Party’s defense of, or other rights available to the Indemnifying Party with respect to to, such Third-Party Claim. The Indemnifying Party shall have thirty (30) twenty days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding a Proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim; provided, however, that the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third-Party Claim if (i) the Third-Party Claim is a criminal proceeding, action, indictment, allegation or investigation, (ii) the Indemnifying Party has failed to defend or is failing to defend in good faith the Third-Party Claim after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed or is failing, (iii) either the HSW Stockholders’ Representative and a Discovery Indemnified Party are both named parties to the Proceedings or Discovery or any of its Affiliates and any Stockholder Indemnified Party are both named parties to the Proceedings, and in each case the Indemnified Party shall have concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, (iv) the relief sought in respect of the Third-Party Claim is non-monetary relief (other than a general boilerplate request for such other and further relief as the court deems just and proper), or (v) it is reasonably likely that the Losses arising from such Third-Party Claim will exceed the amount such Indemnified Party will be entitled to recover as a result of the limitations set forth in this Article IX.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party ClaimClaim and subject to Section 9.4(a), the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing, at its sole cost and expense. The In the event the Indemnified Party shall elects to participate in any such defense at its expense unless defense, the Indemnifying Party and shall not be liable to the Indemnified Party are both named parties to the proceedings and for any fees of counsel or other expenses incurred by the Indemnified Party shall have reasonably concluded, based on in connection with the written advice defense of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themsuch Third-Party Claim. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written consent of Claim unless (i) the Indemnifying Party shall have agreed to indemnify and hold the Indemnified Party harmless from and against any and all Losses caused by or arising out of any such settlement or compromise (and have the means to fund such settlement or compromise), (ii) such settlement or compromise shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes include as an unconditional term thereof the granting giving by the person asserting such claim or bringing such action claimant of an unconditional a release of the Indemnified Party from all liability to all Indemnified Parties with respect to such claim Third-Party Claim, and does not include any admission of culpability(iii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party.
(c) If the Indemnifying Party (i) is not entitled to defend against a Third-Party Claim, (ii) elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwiseotherwise or (iii) after assuming the defense of a Third-Party Claim, fails to take reasonable steps necessary to defend diligently such Third-Party Claim within 10 days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defensedefense (with the Indemnifying Party being liable to the Indemnified Party for any reasonable fees of counsel and other expenses incurred by the Indemnified Party in connection therewith that would otherwise constitute indemnifiable Losses under this Article IX); it being understood provided, however, that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim for which the Indemnifying Party may have liability hereunder without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld or delayed.
(d) The With respect to any Third-Party Claim subject to indemnification under this Article IX: (i) both the Indemnified Party and the Indemnifying Party, as the case may be, shall keep the other Person fully informed of all material developments of such Third-Party shall Claim and any related Proceedings at all stages thereof where such other Person is not represented by its own counsel and (ii) the parties agree to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of a any Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party Party or Parties (as applicable, an “Indemnifying Party”) may have liability to any indemnified party (an “Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), Party”) hereunder is asserted against or sought to be collected from any Indemnified Party by a third party Third Party (a “Third-Third Party Claim”), such Indemnified Party (acting through either the NWMI Sellers’ Representative or Valley Seller in the case of indemnification sought by a Seller Indemnified Party or Holdco in the case of indemnification sought by a Holdco Indemnified Party) shall promptly, but in no event more than ten (10) 20 days following such Indemnified Party’s receipt of a Third-Third Party Claim, notify the Indemnifying Party NWMI Sellers’ Representative, Valley Seller or Holdco, as applicable, and if applicable, the Escrow Agent, in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto Claim (a “Claim Notice”); provided, however, that the failure to timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that if such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party (acting through the NWMI Sellers’ Representative or Valley Seller, as applicable, in the case of indemnification sought by a Seller Indemnified Party or Holdco in the case of indemnification sought by a Holdco Indemnified Party) shall have thirty (30) 30 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party NWMI Sellers’ Representative, Valley Seller or Holdco, as applicable, that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim.
(b) In the event that the Indemnifying Party NWMI Sellers’ Representative or Valley Seller (in the case of indemnification sought by a Holdco Indemnified Party) or Holdco (in the case of indemnification sought by a Seller Indemnified Party) notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party NWMI Sellers’ Representative, Valley Seller or Holdco, as the case may be, shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expensedefense. Once the Indemnifying Party NWMI Sellers’ Representative, Valley Seller or Holdco, as the case may be, has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate Party’s participation in any such defense shall be at its own expense unless (i) representation of the Indemnified Party’s interests by the Indemnifying Party’s counsel would involve an actual conflict of interest or (ii) the Indemnified Party (acting through the NWMI Sellers’ Representative, Valley Seller or Holdco, as applicable) assumes the defense of a Third Party Claim after the NWMI Sellers’ Representative, Valley Seller or Holdco, as the case may be, have failed to diligently pursue a Third Party Claim it has assumed, as provided in the first sentence of Section 7.5(c), in which case the Indemnifying Party and shall pay the reasonable expenses of the Indemnified Party’s counsel. Neither the NWMI Sellers’ Representative nor Valley Seller (if the Indemnified Party are both named parties to the proceedings and is a Holdco Indemnified Party) nor Holdco (if the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall notis a Seller Indemnified Party) shall, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; providedClaim on a basis that would result in (A) the imposition of a consent Order that would restrict the future activity or conduct of the other party or any of its Affiliates, however(B) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (C) a finding or admission that no such prior written consent would have a material adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates or (D) any monetary liability of the Indemnified Party shall that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party. The Indemnified Party (acting through the NWMI Sellers’ Representative, includes Valley Seller or Holdco, as an unconditional term thereof applicable) shall cooperate in the granting defense of any Third Party Claim, including by providing access to such personnel, support and relevant business records and other documents, as may be reasonably requested by the person asserting Indemnifying Party (acting through the NWMI Sellers’ Representative, Valley Seller or Holdco, as applicable) in connection with such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilitydefense.
(c) If the Indemnifying Party NWMI Sellers’ Representative or Valley Seller, as applicable (in the case of indemnification sought by a Holdco Indemnified Party), or Holdco (in the case of indemnification sought by a Seller Indemnified Party) (i) elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwiseotherwise or (ii) after assuming the defense of a Third Party Claim, fails to use reasonable best efforts to defend diligently such Third Party Claim within ten Business Days after receiving written notice from the Indemnified Party to the effect that the NWMI Sellers’ Representative, Valley Seller or Holdco, as the case may be, have so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim. The If the Indemnified Party has assumed the defense of a Third Party Claim pursuant to this Section 7.5(c), then it shall not settle, compromise or offer to settle a Third-or compromise such Third Party Claim without the prior written consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Indemnified Party (acting through the NWMI Sellers’ Representative, Valley Seller or Holdco, as applicable) and the Indemnifying Party shall cooperate in order to ensure (acting through the proper and adequate defense of a Third-Party ClaimNWMI Sellers’ Representative, including by providing access to each other’s relevant business records and other documentsValley Seller or Holdco, and employees.
(eas applicable) The Indemnified Party and the Indemnifying Party shall use their reasonable best efforts to avoid production of confidential information Confidential Information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary contained in this ARTICLE VII, the procedures with respect to any Tax Claim shall be governed by Section 6.1 of this Agreement.
Appears in 1 contract
Samples: Transaction Agreement (Great Elm Capital Group, Inc.)
Third-Party Claim Indemnification Procedures. (a) In From and after Closing, in the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is under this Agreement asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten twenty (1020) days Business Days following such Indemnified Party’s receipt of a Third-Third Party Claim, notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party shall have thirty fifteen (3015) days Business Days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and and, subject to the provisions of Section 9.1(b) with respect to an Appeal, shall have the sole power to direct and control such defense at its the Indemnifying Party’s expense. Once , unless (i) the amount claimed in such Third Party Claim, together with the aggregate amount of any pending claims for indemnification by the Indemnifying Party has duly assumed under this Article 11, exceeds (or may exceed) the liability to the Indemnified Party, (ii) such Third Party Claim is made by any Governmental Entity SC1:4886116.33 or (iii) such Third Party Claim is made in respect of an Order that would materially restrict or otherwise materially adversely affect the future activity or conduct of the Indemnified Party or any of its Affiliates (including, in the case of any Pabst Indemnified Party, the future operations or conduct of the Purchased Assets (or any portion thereof)). If the Indemnifying Party does not have the right to defend the Indemnified Party pursuant to the previous sentence, then the Indemnified Party shall take all reasonable steps necessary to defend diligently such Third Party Claim within ten (10) Business Days after the date on which the Claim Notice was required to be delivered. The Indemnified Party (or the Indemnifying Party if the Indemnifying Party does not have the right to direct and control defense of a Third-Party Claim, the Indemnified Party matter) shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The If the Indemnified Party elects to participate and employ separate counsel, the fees and expenses of such counsel shall participate in any such defense at its expense not constitute Losses unless the Indemnifying Party does not have the right to direct and control the Indemnified Party are both named parties defense of such matter or has the right to direct and control the proceedings defense of such matter and the Indemnified Party fails to take all reasonable steps to defend diligently such claim, in which case such fees and expenses shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themconstitute Losses. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; provided, however, Claim on a basis that no such prior written consent would result in %3. the imposition of an Order that would restrict or otherwise adversely affect the future activity or conduct of the Indemnified Party shall or any of its Affiliates (including, in the case of any Pabst Indemnified Party, the future operations or conduct of the Purchased Assets (or any portion thereof)), %3. a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, %3. any monetary liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money fully and promptly indemnified hereunder by the Indemnifying Party, includes as an unconditional term thereof or %3. such Indemnified Party not being completely and unconditionally released from any and all liabilities (including any and all debts, guaranties, assurances, commitments and obligations of any kind, whether fixed, contingent or absolute) claimed in the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityThird Party Claim.
(c) If the Indemnifying Party %3. elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving delivering the Indemnified Party timely notice of its desire election to so defend or otherwise, or %3. after assuming the defense of a Third Party Claim, fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten (10) Business Days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defensedefense (including settling, compromising or offering to settle or compromise such Third Party Claim, without the Indemnifying Party’s consent); it being understood provided that the Indemnified Party’s right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party and the Indemnifying Party shall reasonably cooperate in order to ensure the proper and adequate defense of a Third-Third Party ClaimClaim pursuant to Section 11.4(b), including by providing reasonable access to each other’s relevant information, business records and other documents, and employees; provided that any costs and expenses related to the investigation and defense of a Third Party Claim incurred by the Indemnified Party shall be counted as Losses.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Lawapplicable law), and to cause all communications among SC1:4886116.33 employees, counsel and others representing any party to a Third-Third Party Claim to avoid production or disclosure of information that would reasonably be made so as expected to preserve cause the loss or waiver of the protection of any applicable attorney-client privilege, attorney work product or work-product privilegesother relevant legal privilege.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) Party may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) thirty days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent extent, if any, then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim)ascertainable, any other remedy sought thereunder, any relevant time constraints relating thereto andthereto, a reasonably detailed explanation of the events giving rise to the extent practicable, such Third-Party Claim and any other material details pertaining thereto (a “Claim Notice”); provided, however, provided that the failure to timely to give a Claim Notice shall affect not relieve the rights Indemnifying Party of an Indemnified Party hereunder only its obligations hereunder, except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or been actually and materially prejudiced by such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify failure. Thereafter, the Indemnified Party that it desires shall deliver to assume the defense Indemnifying Party, promptly following the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party against such relating to the Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires elects to defend the Indemnified Party against a Third-Party Claim, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings, which proceedings and shall have the sole power be promptly settled or prosecuted by it to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claimfinal conclusion; provided however, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer consent to settle or compromise the entry of any Third-Party Claim; provided, however, that no such prior written consent of judgment against the Indemnified Party shall be required to or enter into any proposed settlement that involves only the payment of money by the Indemnifying Partyor compromise which does not include, includes as an unconditional term thereof thereof, the granting giving by the person asserting claimant or plaintiff to the Indemnified Party of a release, in form and substance reasonably satisfactory to the Indemnified Party, from all liability in respect of such claim or bringing litigation. If any Indemnified Party desires to participate in, but not control, any such action of an unconditional release from liability to all Indemnified Parties with respect to such claim defense or settlement, it may do so at its sole cost and does expense. Whether or not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend assumes the Indemnified Party against defense of a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of admit any liability with respect to, settle, compromise or discharge, such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of Indemnifying Party’s prior written consent. If the Indemnifying Party and/or assumes the defense of a Third-Party Claim and is in good faith contesting such Third-Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third-Party Claim that the Indemnifying Party may reasonably recommend and that by its respective insurerterms (i) obligates the Indemnifying Party to pay (or obligates the use of the funds in the General Escrow Account to pay) the full amount of Losses in connection with such Third-Party Claim (other than with respect to any Losses (or portion thereof) that are not required to be paid as a result of such Losses being (or portion thereof) within the Deductible Amount or in excess of the Cap), (ii) fully and unconditionally (other than conditions relating solely to the making of the settlement payment) releases the Indemnified Party in connection with such Third-Party Claim and (iii) imposes no non-monetary or other remedy relating to the Indemnified Party or its conduct or business.
(dc) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing reasonable access to each other’s relevant business records Books and other documentsRecords, and employees.
. Such cooperation shall include the retention and (eupon the Indemnifying Party’s request) the provision to the Indemnifying Party of Books and Records and information that are reasonably relevant to such Third-Party Claim, and making employees and Representatives available on a mutually convenient basis during normal business hours to provide additional information and explanation of any material provided hereunder. The Indemnified Party and the Indemnifying Party shall use reasonable best commercial efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(d) In the event of any conflict between the provisions of this Section 10.9 and Section 8.4 in respect of any Tax Contest, the provisions of Section 8.4 shall control
Appears in 1 contract
Samples: Agreement and Plan of Merger (Endo International PLC)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand Claim for which an indemnifying party Party hereunder (an “Indemnifying Party”) may reasonably be expected to have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third third-party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim)ascertainable, any other remedy sought thereunder, any relevant time constraints relating thereto anda reasonably detailed explanation of the events giving rise to such Third-Party Claim, to supporting documentation for such Third-Party Claim, all communication between the extent practicable, Indemnified Party and the third-party regarding the Third-Party Claim and any other material details pertaining thereto thereto, in each case to the extent known by the Indemnified Party (a “Claim Notice”); provided, however, provided that the failure to timely to give a Claim Notice shall only affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on actually and materially prejudices the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. .
(b) The Indemnifying Party shall have thirty the right (30but not the obligation) to assume the defense and control of any Third Party Claim within 30 days (or such lesser number after the receipt of days set forth in the applicable Claim Notice if the Indemnifying Party admits that it has an indemnification obligation hereunder with respect to the Third Party Claim, in which case such admission shall constitute the Indemnifying Party’s undertaking to pay directly all costs, expenses, damages, judgments, awards, penalties and assessments incurred in connection therewith, except as may be required by court proceeding otherwise provided below; provided, however, that an Indemnifying Party shall not have the right to assume and control the defense of any criminal or regulatory action or Claim or any Third-Party Claim in the event of the Claim seeks equitable or non-monetary remedies or obligations on the Indemnified Party, if a litigated matter) after receipt Third-Party Claim involves a Customer of the Claim Notice (Business, if in the “Notice Period”) reasonable opinion of counsel to notify the Indemnified Party a conflict or potential conflict exists between the Indemnified Party and the Indemnifying Party that would make such separate representation advisable, or if one or more defenses are available to the Indemnified Party that it desires are not available to assume the defense Indemnifying Party. With the prior written consent of the Indemnified Party, the Indemnifying Party against such may undertake and control the defense, compromise and/or settlement of the Third-Party Claim.
(b) Claim without admitting that it has an indemnification obligation hereunder. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires elects to defend defend, or is otherwise permitted by the Indemnified Party to defend, the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the such Indemnified Party by appropriate proceedings proceedings, with counsel not reasonably objected to by the Indemnified Party. Unless and until the Indemnifying Party shall have so assumed the sole power defense of such action or Claim, the Parties shall cooperate in the defense of such action or Claim, and all of the reasonable costs and expenses incurred by the Indemnified Party in connection with the defense, settlement or compromise of such Claim or action shall be Losses subject to direct and control such defense at its expenseindemnification hereunder to the extent provided herein. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claimmade such election, the Indemnified Party shall have the right, but not the obligation, right to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense choosing at its the expense unless the Indemnifying Party and of the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themParty. The Indemnifying Party shall not, without the prior written consent of the such Indemnified PartyParty (such consent not to be unreasonably withheld, conditioned or delayed), settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim if the terms of such settlement would result in (i) the imposition of a consent Order, howeverinjunction, decree or other binding action that no would restrict the future activity or conduct of such prior written consent of the Indemnified Party shall or involve non-monetary relief; (ii) a finding or admission of a violation of Law by such Indemnified Party; or (iii) any monetary liability of such Indemnified Party that will not be required to any proposed settlement that involves only the payment of money paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim . Whether or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend assumes the Indemnified Party against defense of a Third-Party Claim, whether by such Indemnified Party shall not giving admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without such Indemnifying Party’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed). So long as the Indemnifying Party is defending the Third-Party Claim actively and in good faith pursuant to this Section 7.8, the Indemnified Party timely (A) shall not compromise or settle, or consent to the entry of a judgment with respect to, the Third-Party Claim without the prior written consent of the Indemnifying Party; and (B) shall provide the Indemnifying Party with reasonable cooperation in the defense of the Third Party Claim. If the Indemnifying Party, within a reasonable time after notice of its desire the Third-Party Claim, fails to so defend or otherwisethe Third-Party Claim actively and in good faith as described in this Section 7.8, then the Indemnified Party shall have the right but not to undertake the obligation defense, compromise or settlement of the Third-Party Claim on behalf of and for the account and risk of the Indemnifying Party, and the Indemnifying Party shall thereafter have no right to assume its own defense; it being understood that challenge the Indemnified Party’s right defense, compromise or settlement. Notwithstanding anything to indemnification for the contrary in this Section 7.8, if there is a reasonable probability that any Third-Party Claim shall not be may materially and adversely affected by assuming affect the defense Indemnified Party other than as a result of such Third-Party Claim. The money damages or other money payments, then the Indemnified Party shall not settle a Third-have the right to undertake and control the defense, compromise and/or settlement of such Third Party Claim without the consent of the Indemnifying Party and/or its respective insurerClaim.
(dc) The Indemnified Party and the Indemnifying Party shall reasonably cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing reasonable access to each other’s relevant business records books and other documentsrecords, and employees.
. Such cooperation shall include the retention and (eupon the Indemnifying Party’s request) the provision to the Indemnifying Party of books, records and information that are reasonably relevant to such Third-Party Claim, and making employees and representatives available on a mutually convenient basis during normal business hours to provide additional information and explanation of any material provided hereunder. The Indemnified Party and the Indemnifying Party shall use commercially reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party a Party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(d) Anything to the contrary in this Section notwithstanding, if a Third-Party Claim includes both a Claim for Taxes that are Excluded Liabilities and a Claim for Taxes that are not Excluded Liabilities, the Parties shall exercise commercially reasonable efforts to separate such Third-Party Claim into two separate Tax proceedings, one of which concerns only Taxes that are Excluded Liabilities and the other of which concerns only Taxes that are not Excluded Liabilities. If such Third-Party Claim cannot be so separated, Seller (if the Claim for Taxes that are Excluded Liabilities exceeds or is reasonably expected to exceed in amount the Claim for Taxes that are not Excluded Liabilities) or otherwise Buyer (Seller or Buyer, as the case may be, the “Controlling Party”), shall be entitled to control such Third-Party Claim (such Third-Party Claim, a “Tax Claim”). In such case, the other Party (the “Non-Controlling Party”) shall be entitled to participate fully (at the Non-Controlling Party’s sole expense) in the conduct of such Tax Claim and the Controlling Party shall not settle such Tax Claim without the consent of such Non-Controlling Party (which consent shall not be unreasonably withheld, conditioned or delayed). The costs and expenses of conducting the defense of such Tax Claim shall be reasonably apportioned based on the relative amounts at issue in the Tax Claim that are Excluded Liabilities that are not Excluded Liabilities.
Appears in 1 contract
Samples: Accounts Receivable Purchase Agreement (Covenant Logistics Group, Inc.)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) Party may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (other than those relating to Taxes, which are the subject of Section 7.8) (a “Third-Party Claim”), ) such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the party or parties from whom indemnification is sought (collectively, the “Indemnifying Party Party”) in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided. However, however, that the failure timely to give a Claim Notice shall prompt notice will not affect the rights or obligations of an Indemnified the Indemnifying Party hereunder except and only to the extent that that, as a result of such failure has a material prejudicial effect on the defenses or other rights available to failure, the Indemnifying Party with respect to such Third-Party Claimwas prejudiced. The Indemnifying Party shall have thirty (30) 15 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding proceedings in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ a single separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of outside counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them, in which case the Indemnified Party shall participate in such defense and employ separate counsel at the Indemnifying Party’s expense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall be required to or any proposed settlement that involves only of its Affiliates or (ii) a finding or admission of a violation of Law or violation of the payment rights of money any Person by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim Indemnified Party or bringing such action any of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityits Affiliates.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right right, but not the obligation obligation, to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld or delayed.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use commercially reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges. For the avoidance of doubt, nothing in this Section 10.5 shall be construed as a waiver by an Indemnified Party or an Indemnifying Party of any privilege, including any privilege associated with separate counsel as described herein.
Appears in 1 contract
Samples: Securities Purchase Agreement (Spectra Energy Partners, LP)
Third-Party Claim Indemnification Procedures. (a) In the event that Upon any written Indemnified Party’s receipt of notice of assertion of any claim or demand by a third party against an Indemnified Party for which an indemnifying party (an “Indemnifying Party”) Party may have liability to any Indemnified Party hereunder, other than those relating pursuant to Taxes (which are the exclusive subject of this Article X), is asserted against or sought to be collected from any Indemnified Party by a third party IX (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, promptly notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto Claim (a “Claim Notice”); provided, however, that the failure to timely to give a Claim Notice shall not affect the rights of an Indemnified Party hereunder only hereunder, except to the extent that such failure has a material prejudicial effect on materially prejudices the defenses Indemnifying Party’s defense of, or other rights available to the Indemnifying Party with respect to to, such Third-Party Claim. The Indemnifying Party shall have thirty (30) twenty days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding a Proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the [***] These portions of this exhibit have been omitted and filed separately with the Commission pursuant to a request for confidential treatment. Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim; provided, however, that the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third-Party Claim if (i) the Third-Party Claim is a criminal proceeding, action, indictment, allegation or investigation, (ii) the Indemnifying Party has failed to defend or is failing to defend in good faith the Third-Party Claim after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed or is failing, (iii) either the HSW Stockholders’ Representative and a Discovery Indemnified Party are both named parties to the Proceedings or Discovery or any of its Affiliates and any Stockholder Indemnified Party are both named parties to the Proceedings, and in each case the Indemnified Party shall have concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, (iv) the relief sought in respect of the Third-Party Claim is non-monetary relief (other than a general boilerplate request for such other and further relief as the court deems just and proper), or (v) it is reasonably likely that the Losses arising from such Third-Party Claim will exceed the amount such Indemnified Party will be entitled to recover as a result of the limitations set forth in this Article IX.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party ClaimClaim and subject to Section 9.4(a), the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing, at its sole cost and expense. The In the event the Indemnified Party shall elects to participate in any such defense at its expense unless defense, the Indemnifying Party and shall not be liable to the Indemnified Party are both named parties to the proceedings and for any fees of counsel or other expenses incurred by the Indemnified Party shall have reasonably concluded, based on in connection with the written advice defense of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themsuch Third-Party Claim. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written consent of Claim unless (i) the Indemnifying Party shall have agreed to indemnify and hold the Indemnified Party harmless from and against any and all Losses caused by or arising out of any such settlement or compromise (and have the means to fund such settlement or compromise), (ii) such settlement or compromise shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes include as an unconditional term thereof the granting giving by the person asserting such claim or bringing such action claimant of an unconditional a release of the Indemnified Party from all liability to all Indemnified Parties with respect to such claim Third-Party Claim, and does not include any admission of culpability(iii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party.
(c) If the Indemnifying Party (i) is not entitled to defend against a Third-Party Claim, (ii) elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwiseotherwise or (iii) after assuming the defense of a Third-Party Claim, fails to take reasonable steps necessary to defend diligently such Third-Party Claim within 10 days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defensedefense (with the Indemnifying Party being liable to the Indemnified Party for any reasonable fees of counsel and other expenses incurred by the Indemnified Party in connection therewith that would otherwise constitute indemnifiable Losses under this Article IX); it being understood provided, however, that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim for which the Indemnifying Party may have liability hereunder without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld or delayed.
(d) The With respect to any Third-Party Claim subject to indemnification under this Article IX: (i) both the Indemnified Party and the Indemnifying Party, as the case may be, shall keep the other Person fully informed of all material developments of such Third-Party shall Claim and any related Proceedings at all stages thereof where such other Person is not represented by its own counsel and (ii) the parties agree to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of a any Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Samples: Merger Agreement (Howstuffworks Inc)
Third-Party Claim Indemnification Procedures. With respect to third party claims, all claims for indemnification by any MHC Indemnified Party or Operations Indemnified Party (aeach an "INDEMNIFIED PARTY") shall be asserted and resolved as set forth in this Section 8.4 In the event that any written claim or demand for which an indemnifying party a Party (an “Indemnifying Party”"INDEMNIFYING PARTY") may have liability be required to any Indemnified Party hereunder, other than those relating pay an indemnity hereunder pursuant to Taxes (which are the exclusive subject of Article X), Sections 8.2 or 8.3 hereof is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”)party, such Indemnified Party shall promptly, but promptly (and in no any event more than ten (10) within 10 days following of receipt by such Indemnified Party’s receipt Party of a Third-Party Claim, notice of such claim) notify the Indemnifying Party in writing of such Third-Party Claim, claim or demand and the amount or the estimated amount of damages sought thereunder thereof to the extent then ascertainable feasible (which estimate shall not be conclusive of the final amount of such Third-Party Claimclaim and demand) (the "CLAIM NOTICE"), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) 30 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after from its receipt of the Claim Notice (the “Notice Period”"NOTICE PERIOD") to notify the Indemnified Party that whether it desires to assume will undertake the defense of such claim or demand. Notwithstanding anything herein to the Indemnified contrary, if the Indemnifying Party against undertakes the defense of such Third-claim or demand, the undertaking of such defense shall constitute acceptance of responsibility for such claim or demand and the Indemnifying Party Claim.
(b) In shall be fully responsible for such claim or demand. All costs and expenses incurred by the Indemnifying Party in defending such claim or demand shall be a liability of, and shall be paid by, the Indemnifying Party. Except as hereinafter provided, in the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to will defend the Indemnified Party against a Third-Party Claimsuch claim or demand, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense. If any Indemnified Party desires to participate in any such defense it may do so at its sole cost and expense. Once ; provided that it shall comply with reasonable instructions from the Indemnifying Party has duly assumed and shall not take any formal actions inconsistent with or adverse to the defense of a Third-Party Claimsuch claim or demand by the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and right to employ separate one counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and to represent it if the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concludedbelieves, based on upon the written advice of counsel, that representation of both parties it may have available to it one or more defenses or counterclaims which are inconsistent with one or more defenses or counterclaims which may be alleged by the same Indemnifying Party, and in any such event the reasonable fees and expenses of such separate counsel would shall be inappropriate due to actual or potential differing material interests between thempaid by the Indemnifying Party. The Indemnifying Party shall not, not settle a claim or demand without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written consent of the Indemnified Party shall be required to the extent a settlement (A) imposes (i) any proposed settlement that involves only monetary obligation on the payment of money by Indemnified Party (other than any such amount as is subject to indemnification under this Article VIII) or (ii) a future non-monetary obligation on the Indemnifying Indemnified Party, includes (B) does not include as an unconditional term thereof the granting giving by the person Person or Persons asserting such claim or bringing such action to the Indemnified Party of an unconditional release from all liability to all Indemnified Parties with respect to thereto, or (C) requires any undertaking or admission by such claim and does not include any admission of culpability.
(c) Indemnified Party. If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claimsuch claim or demand, whether by not giving the Indemnified Party timely notice of its desire to so defend as provided above or otherwise, then the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming diligently conduct the defense and the reasonable costs and expenses pertaining to such defense shall be the liability of such Third-the Indemnifying Party Claim. The hereunder; provided that in any case the Indemnified Party shall not settle a Third-Party Claim claim or demand without the consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party and Party, which consent shall not be unreasonably withheld or delayed. To the extent the Indemnifying Party shall cooperate direct, control or participate in order to ensure the proper defense or settlement of any third party claim or demand, the Indemnified Party shall give the Indemnifying Party and adequate defense of a Third-Party Claimits counsel access to, including by providing access to each other’s during normal business hours, the relevant business records and other documents, and employees.
(e) The shall permit them to consult with the employees and counsel of the Indemnified Party and Party. Regardless of which Person assumes control of the Indemnifying defense of any claim, each Party shall use cooperate and provide the other Party reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privilegesassistance in the defense thereof.
Appears in 1 contract
Samples: Merger Agreement (Manufactured Home Communities Inc)
Third-Party Claim Indemnification Procedures. (a) In Except as provided in Section 8.2 with respect to Tax Contest Claims, in the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Third Party Claim, notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party shall have thirty (30) 90 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense defense, with counsel reasonably satisfactory to the Indemnified Party at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense choosing at its expense unless the Indemnifying Party own cost and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themexpense. The Indemnifying Party shall not, without the prior written consent of the Indemnified PartyParty (such consent not to be unreasonably withheld, delayed or conditioned), settle, compromise or offer to settle or compromise any Third-Third Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall or any of its Affiliates, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (iii) a finding or admission that would have an adverse effect to no more than a de minimis extent on other claims made or threatened against the Indemnified Party or any of its Affiliates, (iv) except to the extent within the De Minimis Amount, any monetary liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof Party or (v) any non-monetary condition or obligation being imposed on any Indemnified Party or any of its Affiliates that would restrict the granting by future activity or conduct of the person asserting such claim Indemnified Party or bringing such action any of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.its Affiliates. OC\1994682.10
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; , it being understood that any right of the Indemnified Party’s right Party to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim. The Indemnified Indemnifying Party shall not settle have no liability with respect to a Third-Third Party Claim settled without the its consent, which consent of the Indemnifying Party and/or its respective insurershall not be unreasonably withheld or delayed.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Third Party Claim, including by providing access to each other’s relevant business records and other documents, documents and employees, it being understood that the costs and expenses of the Indemnified Party relating thereto shall be considered Losses. The Indemnified Party and the Indemnifying Party shall keep each other fully informed with respect to the status of such Third Party Claim.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(f) Each of Buyer Parent and Seller Parent hereby consents to the non-exclusive jurisdiction of any court in which a Third Party Claim is brought for purposes of any claim for indemnification or reimbursement with respect to such Third Party Claim or the matters alleged therein.
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Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is threatened or asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial an adverse effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated mattermatter or by a Governmental Entity) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them, or (ii) the Indemnified Party assumes the defense of a Third-Party Claim after the Indemnifying Party has failed to diligently pursue a Third-Party Claim it has assumed, as provided in Section 8.4(c), in which case the Indemnifying Party shall be liable for the reasonable fees and expenses of one separate counsel (in addition to any necessary local counsel) to the extent such Third-Party Claim is subject to indemnification or reimbursement under Section 8.2 or Section 8.3. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, howeverinjunction or decree that would restrict the future activity or conduct of the Indemnified Party, the Company or any of their Affiliates, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party, the Company or any of their Affiliates, (iii) a finding or admission that no such prior written consent would have an adverse effect on other claims made or threatened against the Indemnified Party, the Company or any of their Affiliates or (iv) except to the extent within the Basket Amount, any monetary liability of the Indemnified Party shall that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwiseotherwise or (ii) after assuming the defense of a Third-Party Claim, fails to take reasonable steps necessary to defend diligently such Third-Party Claim within ten (10) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, documents and employees, it being understood that the costs and expenses of the Indemnified Party relating thereto shall be considered Losses. The Indemnified Party and the Indemnifying Party shall keep each other fully informed with respect to the status of such Third-Party Claim.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(f) Each of the Parties hereby consents to the non-exclusive jurisdiction of any court in which a Third-Party Claim is brought for purposes of any claim for indemnification or reimbursement with respect to such Third-Party Claim or the matters alleged therein.
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Third-Party Claim Indemnification Procedures. If an indemnification claim made by any Indemnified Party under this Article VIII involves a third party claim (a “Third Party Claim”), such Indemnified Party shall (a) In promptly notify the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability of all relevant information concerning the Third Party Claim known to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, provided that failure to so notify the Indemnifying Party in writing of such Third-Party Claim, will only relieve the amount or the estimated amount of damages sought thereunder indemnification obligation if and to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a results in material prejudicial effect on the defenses or other rights available to the Indemnifying Party prejudice with respect to such Third-Third Party Claim. The ) and (b) give the Indemnifying Party shall have thirty full opportunity to control the defense of such Third Party Claim (30) days (or using counsel reasonably acceptable to such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify Indemnified Party); provided that the Indemnified Party that it desires to assume the defense of the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires can participate in any proceeding to defend the Indemnified Party against a Third-such Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party represented by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense , at its own cost and expense unless the Indemnifying Party and the Indemnified Party are both named as parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written consent of in which event the Indemnified Party shall be required entitled to any proposed settlement that involves only the payment of money by the Indemnifying Partyemploy one counsel to represent it. If, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If after notice thereof, the Indemnifying Party elects not fails to defend promptly assume the defense of a Third Party Claim for which indemnification is claimed hereunder (but in any event within thirty (30) days of receiving notice of the Third Party Claim from the Indemnified Party), or, after having assumed defense of such claim, fails to diligently conduct such defense, the Indemnified Party against a Third-Party Claimmay assume the defense thereof, whether by not giving and shall be indemnified for the cost and expense of such defense (to the extent such Indemnified Party timely notice of its desire is entitled to so defend or otherwise, indemnification hereunder). If the Indemnified Party shall have employed counsel as described in the right but foregoing sentences, the reasonable fees and expenses of such counsel shall be included in the calculation of Losses with respect to the Third Party Claim. No Indemnified Party may be bound by any compromise or settlement of a Third Party Claim without its consent (not to be unreasonably withheld, conditioned or delayed) unless (i) the obligation to assume its own defense; it being understood that sole relief is monetary damages for which the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense fully indemnified, and (ii) there is no finding or admission of such Third-Party Claimany violation of Law or rights of any person or entity. The Indemnified Party shall not compromise or settle a Third-any Third Party Claim without the Indemnifying Party’s prior written consent of (not to be unreasonably withheld, conditioned or delayed) unless such compromise or settlement (A) does result in any indemnifiable Losses or (B) fully releases the Indemnifying Party and/or its respective insurerof any Liability under this Article VIII.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
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Third-Party Claim Indemnification Procedures. (a) In The obligations and Liabilities of an Indemnifying Party under this Article 8 with respect to Losses arising from claims of any third party which are subject to the event that indemnification provided for in this Article 8 (“Third Party Claims”) shall be governed by and contingent upon the terms and conditions set forth in this Section 8.3. If any written claim Person entitled to indemnification pursuant to Section 8.2(a) or demand for which an indemnifying party 8.2(b) (an “Indemnifying Indemnified Party”) may have liability to shall receive notice of any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such the Indemnified Party shall promptly, but in no event more than give the Indemnifying Party notice of such Third Party Claim within ten (10) days following such of the receipt by the Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”)notice; provided, however, that the failure timely to give a Claim Notice provide such notice shall affect not release the rights Indemnifying Party from any of an Indemnified Party hereunder only its respective obligations under this Article 8 except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to is materially prejudiced by such Third-Party Claimfailure. The Indemnifying Party notice of claim shall have thirty (30) days (or such lesser number of days set forth describe in reasonable detail the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) facts known to notify the Indemnified Party that it desires giving rise to assume such indemnification claim, and the defense amount or good faith estimate of the Indemnified Party against such Third-Party Claimamount arising therefrom.
(b) The Indemnifying Party shall be entitled to assume and control the defense of a Third Party Claim at its expense and through counsel of its choice (such counsel to be reasonably acceptable to the Indemnified Party) if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days after the receipt of such notice from the Indemnified Party; provided, however, if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel, in each jurisdiction for which counsel is required, at the expense of the Indemnifying Party. In the event that the Indemnifying Party notifies exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnifying Party shall conduct the defense of the Third Party Claim actively and diligently and the Indemnified Party within shall cooperate with the Notice Period that it desires Indemnifying Party in such defense and make available to defend the Indemnifying Party at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against a Third-any such Third Party Claim, the Indemnifying Party shall have the right to defend cooperate with the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and make available to employ separate counsel of its choosing. The the Indemnified Party shall participate in any such defense Party, at its expense unless the Indemnifying Party Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party are both named parties to Claim may be settled by any party conducting the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, defense against such claim without the prior written consent of the Indemnified Partyother party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written which consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerunreasonably delayed or withheld.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
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Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party a Person from whom indemnification is sought under this Article IX (an the “Indemnifying Party”) may have liability to any Person claiming indemnification under this Article IX (the “Indemnified Party hereunderParty”) hereunder (which, other than those relating to Taxes (for the avoidance of doubt, shall not include any claim for which are the exclusive subject of Article X), Indemnified Party’s sole recourse is under the R&W Insurance Policy) is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptlyshall, but in no event more than ten (10) days promptly following such Indemnified Party’s receipt of a Third-Third Party Claim, notify the Indemnifying Party in writing of such Third-Third Party ClaimClaim including reasonable details with respect thereto, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim)ascertainable, any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a such Claim Notice shall affect not relieve the rights Indemnifying Party of an Indemnified Party hereunder only its obligations hereunder, except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect is actually and materially damaged or prejudiced as a result of such failure to such Thirdgive timely notice vis-Party Claimà-vis its rights and obligations hereunder or otherwise. The Subject to the limitations set forth in Section 9.2(b), the Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the a Claim Notice (to assume the “Notice Period”) conduct and control, through counsel reasonably acceptable to notify the Indemnified Party that it desires to assume and at the expense of the Indemnifying Party, of the settlement or defense of the applicable Third Party Claim, and the Indemnified Party against such Third-shall cooperate with the Indemnifying Party Claim.
(b) In the event in connection therewith; provided, that the Indemnifying Party notifies shall permit the Indemnified Party within to participate in such settlement or defense through counsel chosen by such Indemnified Party; provided, further, that the Notice Period that it desires to defend fees and expenses of such counsel shall be borne by such Indemnified Party. In the Indemnified event the Indemnifying Party against assumes conduct and control of a Third-Third Party Claim, the Indemnifying Party shall have not, except with the right to defend consent in writing of the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed), enter into any settlement or consent to entry of any judgment that (x) imposes any injunctive relief or other equitable relief against the Indemnified Party, or (y) does not include as a term thereof the giving by appropriate proceedings the Person(s) asserting such Claim against the Indemnified Party of an express and shall have the sole power unconditional release from all liability with respect to direct and control such defense at its expenseThird Party Claim. Once So long as the Indemnifying Party has duly assumed is reasonably contesting any such Third Party Claim in good faith, the Indemnified Party shall not pay or settle any such Third Party Claim; provided, that if the Indemnified Party does pay or settle such Third Party Claim it shall waive any right to indemnity by the Indemnifying Party for the Losses set forth in the Claim Notice solely with respect to such matters that have been paid or settled unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Claim Notice that it elects to undertake the defense of a Third-the applicable Third Party Claim, the Indemnified Party shall have the right, but not right to contest the obligation, to participate in any such defense and to employ separate counsel Claim at the expense of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and Party, provided that the Indemnified Party shall have reasonably concludednot enter into any settlement of, based on or consent in writing to entry of any judgment with respect to, such [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the written advice of counsel, type that representation of both parties by the same counsel would be inappropriate due to actual Registrant treats as private or potential differing material interests between themconfidential. The Indemnifying Third Party shall notClaim, without the prior written consent of the Indemnifying Party (which shall not be unreasonably withheld, conditioned or delayed).
(b) Notwithstanding anything in Section 9.2(a) to the contrary, the Indemnified Party will have the right to conduct and control, through counsel of its choosing and at the expense of the Indemnifying Party, the defense, compromise and settlement of any Third Party Claim if (i) such Third Party Claim seeks an injunction or other equitable relief against the Indemnified Party or alleges a criminal violation, (ii) in the reasonable opinion of counsel to the Indemnified Party, settlea conflict or potential conflict exists between the Indemnified Party and the Indemnifying Party, or (iii) the R&W Insurance Provider has exercised a right to defend the Third Party Claim under the R&W Insurance Policy. Additionally, the Indemnifying Party will lose its right to contest, defend, litigate and settle the Third Party Claim if it fails to accept a tender of the defense of the Third Party Claim according to Section 9.2(a). In such event, the Indemnified Party will have the right to conduct and control, through counsel of its choosing and at the expense of the Indemnifying Party, the defense, compromise or offer to settle or compromise settlement of any Third-such Third Party Claim; provided, however, that no at least fourteen (14) days prior to any such settlement, written notice of its intention to settle is given to the Indemnifying Party during which settlement shall be subject to the prior written consent of the Indemnifying Party (which shall not be unreasonably withheld, conditioned or delayed) if during such fourteen (14) days the Indemnifying Party acknowledges that it is responsible to indemnify such Indemnified Party shall be required to any proposed settlement that involves only the payment of money by for Losses incurred in connection therewith. If the Indemnifying Party, includes as an unconditional term thereof within thirty (30) days after written notice of any Third Party Claim (or sooner if the granting by nature of the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Third Party Claim so requires), elects not to defend the Indemnified such Third Party against a Third-Party Claim, whether by Claim (or is not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation entitled to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming or continue the defense of such Third-Third Party Claim. The ) or thereafter fails or ceases to defend such Third Party Claim, actively (given the nature of the case) and in good faith, then the Indemnified Party shall not settle a Third-will (upon further advance written notice of at least three (3) days) have the right to undertake the defense, compromise or settlement of such Third Party Claim without as it deems appropriate and at the consent expense of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party Party, or consent to the entry of a judgment with respect thereto, and the Indemnifying Party shall cooperate in order thereafter have no right to ensure undertake the proper and adequate defense of a Third-Party Claimdefense, including by providing access to each other’s relevant business records and other documents, and employeescompromise or settlement thereof.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) Buyer may have liability any Liability to any Seller Indemnified Party hereunder or for which Seller and Members may have any Liability to any Buyer Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Seller Indemnified Party or Buyer Indemnified Party, as applicable (each, an "INDEMNIFIED PARTY"), by a third party (a “Third-Party Claim”"THIRD PARTY CLAIM"), such Indemnified Party Seller and Members on the one hand, or Buyer on the other hand, shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, promptly notify the Indemnifying Party in writing other of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party Buyer and Members or Seller, as applicable, shall then have thirty (30) 30 days (or such lesser number of days set forth in the notice of the Third Party Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the notice of the Third Party Claim Notice (the “Notice Period”) to notify the other and such Indemnified Party that it desires to assume the defense of the Indemnified Party against defend such Third-Third Party Claim.
(b) In the event that Buyer on the Indemnifying Party one hand, or Seller and Members on the other hand, notifies the other and such Indemnified Party within such 30-day period (or such shorter period as provided in the Notice Period notice of the Third Party Claim or as required by a court proceeding) that it desires to defend the such Indemnified Party against a Third-Third Party Claim, the Indemnifying Party such party shall have the right to defend the Indemnified Party by appropriate proceedings using counsel reasonably satisfactory to the Indemnified Party and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party a party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall notNo party shall, without the prior written consent of the each Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall be required to or any proposed settlement that involves only of its Affiliates, (ii) a finding or admission of a violation of Law or violation of the payment rights of money any Person by the Indemnifying PartyIndemnified Party or any of its Affiliates, includes as (iii) a finding or admission that would have an unconditional term thereof adverse effect on other claims made or threatened against the granting Indemnified Party or any of its Affiliates, or (iv) any monetary Liability of the Indemnified Party that will not be promptly paid or reimbursed by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityparty.
(c) If Buyer on the Indemnifying Party one hand, or Seller and Members on the other hand, as applicable, (i) elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwiseotherwise or (ii) after assuming the defense of a Third Party Claim, fails to take reasonable steps necessary to defend diligently such Third Party Claim, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that IT BEING UNDERSTOOD THAT the Indemnified Party’s 's right to indemnification for a Third-Third Party Claim shall not be adversely affected by such Indemnified Party's assuming the defense of such Third-Third Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party Such party and the Indemnifying Indemnified Party shall cooperate in order to ensure the proper and adequate defense of a Third-Third Party Claim, including by providing access to each other’s 's relevant business records and other documents, and employees; IT BEING UNDERSTOOD THAT the costs and expenses of the Indemnified Party relating thereto shall be Losses.
(e) The Indemnified Party Such party and the Indemnifying Indemnified Party shall use reasonable best efforts to avoid production of confidential information Confidential Information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(f) Notwithstanding anything in this SECTION 7.3 to the contrary, (i) the Indemnified Party shall have full control over the defense of any Third Party Claim involving Taxes and the Indemnified Party shall not be required to provide any other party hereto with access to the Indemnified Party's Tax Returns or any other Tax information or proceedings that the Indemnified Party reasonably deems to be confidential; and (ii) if there is a reasonable probability that a Third Party Claim may materially and adversely affect an Indemnified Party other than as a result of money damages or other monetary payments, including without limitation, any Third Party Claim (a) relating to or arising out of any criminal proceeding, action, indictment, allegation or investigation, or (b) seeking an injunction or other equitable relief against the Indemnified Party, the Indemnified Party shall have the right to control the prosecution, defense or settlement of such Third Party Claim. In all of the foregoing cases, such party shall nevertheless pay the reasonable fees and expenses of counsel retained by the Indemnified Party in the foregoing circumstances.
Appears in 1 contract
Samples: Asset Purchase Agreement (Firstplus Financial Group Inc)
Third-Party Claim Indemnification Procedures. (a) In Except as provided in Section 7.7(f) with respect to Tax Claims, in the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-any threatened Third Party Claim, notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount SC1:4515121.14 of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial an adverse effect on the defenses resolution or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and counsel of the Indemnifying Party has identified a non-waivable conflict or actual differing interests between the Indemnifying Party and the Indemnified Party, or (ii) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, as provided in the first sentence of Section 10.4(c), in which case the Indemnifying Party shall have reasonably concluded, based on be liable for the written advice fees and expenses of counsel, that representation of both parties by one separate counsel to the same counsel would be inappropriate due extent such Third Party Claim is subject to actual indemnification or potential differing material interests between themreimbursement under Sections 10.2 or 10.3. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall be required to or any proposed settlement that involves only of its Affiliates, (ii) a finding or admission of a violation of Law or violation of the payment rights of money any Person by the Indemnifying Party, includes as Indemnified Party or any of its Affiliates or (iii) a finding or admission that would have an unconditional term thereof adverse effect on other claims made or threatened against the granting by the person asserting such claim Indemnified Party or bringing such action any of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityits Affiliates.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwiseotherwise or (ii) after assuming the defense of a Third Party Claim, fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten (10) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; defense and shall consult with the Indemnifying Party regarding the strategy for defense of such claim, including with respect to the Indemnified Party’s choice of legal counsel, it being understood that the Indemnified Party’s right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim. The Indemnified Indemnifying SC1:4515121.14 Party shall not settle have no liability with respect to a Third-Third Party Claim settled without the its consent, which consent of the Indemnifying Party and/or its respective insurershall not be unreasonably withheld or delayed.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Third Party Claim, including by providing access to each other’s relevant business records and other documents, documents and employees, it being understood that the costs and expenses of the Indemnified Party relating thereto shall be considered Losses. The Indemnified Party and the Indemnifying Party shall keep each other fully informed with respect to the status of such Third Party Claim.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(f) Each of Buyer and the Seller hereby consents to the non-exclusive jurisdiction of any court in which a Third Party Claim is brought for purposes of any claim for indemnification or reimbursement with respect to such Third Party Claim or the matters alleged therein.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Impax Laboratories Inc)
Third-Party Claim Indemnification Procedures. If a claim arises as to which Pure Cycle is entitled to indemnification from Seller hereunder or if a claim arises as to which Seller is entitled to indemnification from Pure Cycle, the party entitled to indemnification (athe “Indemnified Party”) In shall endeavor to advise the event that any written claim or demand for which an indemnifying other party (an the “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes of the claim within five (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (105) business days following such Indemnified Party’s after receipt of a Third-Party Claimsummons, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable within twenty (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (3020) business days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of other written communication giving information as to the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense nature of the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claimclaim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, provided that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire failure to so defend or otherwise, the Indemnified Party notify shall have the right but not the obligation to assume its own defense; it being understood that limit the Indemnified Party’s right to indemnification for a Third-under Section 8.6 unless such failure materially prejudices the ability of the Indemnifying Party Claim to defend such third party claim and then only to such extent. The Indemnifying Party shall not be adversely affected liable or responsible for any expenses which are incurred by assuming the Indemnified Party before such notice has been given to the Indemnifying Party, nor bound by any settlements made by the Indemnified Party before such notice. The Indemnifying Party shall, within the lesser of twenty (20) days after receipt of notification of the claim from the Indemnified Party or five (5) days before an answer is required to be filed, advise the Indemnified Party whether the Indemnifying Party will undertake the defense of such Third-claim on behalf of the Indemnified Party Claimand, if so, shall specify the name of the attorney who will handle the matter, which attorney shall be reasonably satisfactory to the Indemnified Party and shall not have any present or potential conflict in representing the interests of both parties. The If the Indemnifying Party timely notifies the Indemnified Party that it will undertake the defense of such claim and agrees that it is legally obligated to indemnify the Indemnified Party hereunder and shall thereafter diligently provide such defense, such counsel shall have control of the defense, but the Indemnified Party may participate in the defense with its own counsel paid for by the Indemnified Party, and the Indemnified Party shall not settle a Third-Party Claim or compromise such claim without the prior consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party and Party, which consent shall not be unreasonably withheld. If the Indemnifying Party shall cooperate in order fails timely to ensure advise the proper and adequate Indemnified Party that it will undertake the defense of a Third-Party Claimsuch claim on behalf of the Indemnified Party, including by providing access fails to each other’s relevant business records and other documents, and employees.
(e) The agree that it is legally obligated to indemnify the Indemnified Party hereunder or fails diligently to pursue such defense, the Indemnified Party may undertake the defense of such claim with its own counsel and may settle or compromise such claim in its sole discretion, all at the expense of the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privilegesParty.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) Party may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (other than those relating to Taxes, which are the subject of Section 6.7) (a “Third-Party Claim”), ) such Indemnified Party shall promptly, but in no event more than ten (10) days Business Days following such Indemnified Party’s receipt of a Third-Party Claim, notify the party or parties from whom indemnification is sought (collectively, the “Indemnifying Party Party”) in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided. However, however, that the failure timely to give a Claim Notice shall prompt notice will not affect the rights or obligations of an Indemnified the Indemnifying Party hereunder except and only to the extent that that, as a result of such failure has a material prejudicial effect on the defenses or other rights available to failure, the Indemnifying Party with respect to such Third-Party Claimwas prejudiced. The Indemnifying Party shall have thirty fifteen (3015) days Business Days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding proceedings in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ a single separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of outside counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them, in which case the Indemnified Party shall participate in such defense and employ separate counsel at the Indemnifying Party’s expense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall be required to or any proposed settlement that involves only of its Affiliates or (ii) a finding or admission of a violation of Law or violation of the payment rights of money any Person by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim Indemnified Party or bringing such action any of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityits Affiliates.
(c) If the Indemnifying Party elects not to, or is deemed to elect not to, defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right right, but not the obligation obligation, to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party (i) shall not settle a diligently defend such Third-Party Claim and (ii) may not enter into a settlement thereof without the consent obtaining approval of the Indemnifying Party and/or its respective insurer(which approval shall not be unreasonably withheld, delayed or conditioned) unless the Indemnified Party will not be seeking indemnification from the Indemnifying Party for any amounts paid pursuant to such settlement thereof or for any other consequences of such Third-Party Claim.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use commercially reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges. For the avoidance of doubt, nothing in this Section 9.5 shall be construed as a waiver by an Indemnified Party or an Indemnifying Party of any privilege, including any privilege associated with separate counsel as described herein.
Appears in 1 contract
Samples: Omnibus Agreement (NextDecade Corp.)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (other than those relating to Taxes, which are the subject of Section 7.8) (a “Third-Party Claim”), ) such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the party or parties from whom indemnification is sought (collectively, the “Indemnifying Party Party”) in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided. However, however, that the failure timely to give a Claim Notice shall prompt notice will not affect the rights or obligations of an Indemnified the Indemnifying Party hereunder except and only to the extent that that, as a result of such failure has a material prejudicial effect on the defenses or other rights available to failure, the Indemnifying Party with respect to such Third-Party Claimwas prejudiced. The Indemnifying Party shall have thirty (30) 15 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding proceedings in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim. For purposes of this Article X, any existing or future claims related to the Retained Liabilities shall be subject to the same procedures as Third-Party Claims.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ a single separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of outside counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them, in which case the Indemnified Party shall participate in such defense and employ separate counsel at the Indemnifying Party’s expense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall be required to or any proposed settlement that involves only of its Affiliates or (ii) a finding or admission of a violation of Law or violation of the payment rights of money any Person by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim Indemnified Party or bringing such action any of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityits Affiliates.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right right, but not the obligation obligation, to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld or delayed.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use commercially reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges. For the avoidance of doubt, nothing in this Section 10.5 shall be construed as a waiver by an Indemnified Party or an Indemnifying Party of any privilege, including any privilege associated with separate counsel as described herein.
Appears in 1 contract
Samples: Securities Purchase Agreement (Spectra Energy Corp.)
Third-Party Claim Indemnification Procedures. Subject to Section 5.3(e) with respect to Taxes, with respect to third party claims, all claims for indemnification by any Person that may be entitled to indemnification hereunder (aan "Indemnified Party") shall be asserted and ----------------- resolved as set forth in this Section 7.4. In the event that any written claim or demand for which a Party may be required to pay an indemnifying party indemnity hereunder (such Party, an “"Indemnifying Party”") may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected ------------------ from any Indemnified Party by a third party (a “Third-Party Claim”)party, such Indemnified Party shall promptly, but in no event more than ten (10) days 15 Business Days following such Indemnified Party’s 's receipt of a Third-Party Claimsuch claim or demand or knowledge thereof, notify the Indemnifying Party in writing of such Third-Party Claim, claim or demand and the amount or the estimated amount of damages sought thereunder thereof to the extent then ascertainable feasible (which estimate shall not be conclusive of the final amount of such Third-Party Claimclaim and demand) (the "Claim Notice"); ------------ provided, any other remedy sought thereunderhowever, any relevant time constraints relating thereto and, that failure to give such notification shall not affect the -------- ------- indemnification provided hereunder except to the extent practicablethat Indemnifying Party shall have been actually prejudiced as a result of such failure. The Indemnifying Party shall have 45 Business Days from its receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party (a) whether or not ------------- the Indemnifying Party disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such claim or demand and (b) whether or not it will defend the Indemnified Party against such claim or demand. All costs and expenses incurred by the Indemnifying Party in defending such claim or demand shall be a liability of, any other material details pertaining thereto (a “Claim Notice”)and shall be paid by, the Indemnifying Party; provided, however, that the failure timely to give amount of such costs and expenses that shall be a Claim Notice shall affect the rights -------- ------- liability of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect hereunder shall be subject to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days the limitations set forth in the Claim Notice this Article VII. Except as may be required by court proceeding hereinafter provided, in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to will defend the Indemnified Party against a Third-Party Claimsuch claim or demand, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expensedefense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the If any Indemnified Party shall have the right, but not the obligation, desires to participate in any such defense it may do so, provided that unless there is a conflict of interest or there shall exist additional defenses solely applicable to such Indemnified Party, (i) it shall comply with reasonable instructions from the Indemnifying Party, and to employ separate counsel of (ii) its choosing. The Indemnified Party participation shall participate in any such defense be at its expense unless the Indemnifying Party sole cost and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themexpense. The Indemnifying Party shall not, not settle a claim or demand without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written consent of the Indemnified Party shall be required to any proposed the extent a settlement that involves only imposes a material future, non-monetary obligation on the payment of money by the Indemnifying Indemnified Party, includes as an unconditional term thereof the granting by the person asserting and such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does consent shall not include any admission of culpability.
(c) be unreasonably withheld. If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claimsuch claim or demand, whether by not giving the Indemnified Party timely notice of its desire to so defend as provided above or otherwise, then the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming conduct the defense and that portion thereof as to which such defense is unsuccessful (and the reasonable costs and expenses pertaining to such defense) shall be the liability of such Third-the Indemnifying Party Claim. The hereunder, subject to the limitations set forth in this Article VII; provided that in any -------- case the Indemnified Party shall not settle a Third-Party Claim claim or demand without the consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified which consent shall not be unreasonably withheld; provided further that notwithstanding the foregoing, if the -------- ------- Indemnifying Party and is not defending the relevant claim as permitted hereunder, the Indemnifying Party shall cooperate only be liable for Losses of the Indemnified Party as contemplated by this Article VII to the extent reasonably incurred in, and as the result of, a diligent defense by the Indemnified Party of such third party claim or demand. To the extent the Indemnifying Party shall direct, control or participate in order to ensure the proper defense or settlement of any third party claim or demand, the Indemnified Party will give the Indemnifying Party and adequate defense of a Third-Party Claimits counsel access to, including by providing access to each other’s during normal business hours, the relevant business records and other documents, and employees.
(e) The shall permit them to consult with the employees and counsel of the Indemnified Party and Party. Regardless of which Person assumes control of the Indemnifying defense of any claim, each Party shall use cooperate and provide the other Party reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privilegesassistance in the defense thereof.
Appears in 1 contract
Samples: Purchase Agreement (C Cor Net Corp)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any party hereunder that may be entitled to such indemnification hereunder (an “Indemnified Party hereunderParty”), other than those relating to Taxes (which are the exclusive subject of Article X)Section 5.5, is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no any event more than ten (10) days within 30 days’ following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, describing in reasonable detail to the extent known the facts and circumstances with respect to the subject matter of such claim or demand, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim)thereunder, any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, and any other material details pertaining thereto (a “Claim Notice”)) ; providedprovided that, howeverwith respect to the Third Party Claims set forth on Section 7.4 of the Seller Disclosure Letter, that Buyer shall be deemed to have given such Claim Notice as of the Closing and Seller has elected to defend such Third Party Claims. The rights of any Indemnified Party to be indemnified hereunder shall not be adversely affected by its failure to timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only with respect thereto except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claimis materially prejudiced thereby. The Indemnifying Party shall have thirty (30) 30 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, (i) the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once expense unless the Indemnified Party has notified the Indemnifying Party in the Claim Notice that it has duly assumed the defense of determined in good faith that there is a reasonable probability that such Third-Party Claim, Claim may adversely affect it or its Affiliates other than as a result of monetary damages (including by way of adverse reputational effect) and (ii) the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ (at its expense subject to the immediately following proviso) separate counsel of its choosing. The ; provided, however, that if any actual or potential conflict of interest (including one or more legal defenses or counterclaims is available to the Indemnified Party shall participate that are different from or in any such defense at its expense unless addition to those available to the Indemnifying Party) exists, the Indemnifying Party and shall pay the Indemnified Party are both named parties to the proceedings Parties’ reasonable fees for one such counsel and local counsel, as appropriate, for all of the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themParties collectively. The Indemnifying Party shall not, without the prior written consent of the Indemnified PartyParty (which shall not be unreasonably withheld, delayed or conditioned), settle, compromise or offer to settle or compromise compromise, any Third-Party Claim; provided, however, Claim on a basis that no such prior written would result in (i) the imposition of a consent Order that would restrict the future activity or conduct of the Indemnified Party shall be required to or any proposed settlement that involves only the payment of money its Affiliates, or (ii) a finding or admission of a violation of Law by the Indemnifying Indemnified Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, (i) the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that defense and the attorneys’ fees and other Losses incurred by the Indemnified Party’s right Party in connection with such defense shall be the obligation of the Indemnifying Party to indemnification for a the extent the Indemnifying Party is obligated to indemnify the Indemnified Party against such Third-Party Claim shall not be adversely affected by assuming and (ii) the defense of such Third-Party Claim. The Indemnified Party shall not settle a any Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld, delayed or conditioned.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) . The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Local Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client (or solicitor-client) or work-product privileges.
(e) The foregoing indemnification procedures of this Section 7.4 shall not apply to regular payments made in fulfillment of the German Pension Plans Liabilities. Buyer shall procure that, each year in January, BCL shall render an account of any regular payments made in fulfillment of the German Pension Plans Liabilities and any payments received under any German Pension Plans Insurance Contract or any German Pension Plans Re-Insurance Contract since the Closing Date (in the first year) or since the last account was rendered (in any subsequent year). The rights of any Buyer Indemnified Party to be indemnified hereunder shall not adversely be affected by BCL’s failure to timely render such account except to the extent the Seller is materially prejudiced thereby. If the payments made exceed the payments received Seller shall comply with its obligations under Section 7.2(a)(ix) within 30 days from receipt of the account and proof of the individual payments; otherwise, Buyer or BCL shall pay the balance to Seller within 30 days from receipt of the account by Seller.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Jefferies Group Inc /De/)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party hereunder (an “Indemnifying Party”) may have liability to any indemnified party hereunder (an “Indemnified Party hereunderParty”), other than those relating to Taxes taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, describe the amount breach or inaccuracy and other material facts and circumstances upon which such claim is based and the estimated amount of damages sought thereunder losses involved, in each case, in reasonable detail in light of the facts then known to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Indemnified Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, provided that the failure to timely to give give, or defect in the information contained in, a Claim Notice shall affect not relieve the rights Indemnifying Party of an Indemnified Party hereunder only its obligations hereunder, except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or been actually and materially prejudiced by such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify failure. Thereafter, the Indemnified Party that it desires shall deliver to assume the defense Indemnifying Party, promptly following the Indemnified Party’s receipt thereof, copies of all written notices and documents (including court papers) received by the Indemnified Party against from such third party relating to the Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access reasonable access, subject to reasonable privilege or confidentiality concerns, to each other’s relevant business records books and other documentsrecords, and employees.
. Such cooperation shall include the retention and (eupon the Indemnifying Party’s request, but subject to reasonable privilege or confidentiality concerns) the provision to the Indemnifying Party of Books and Records and information that are reasonably relevant to such Third-Party Claim, and making employees and Representatives available on a mutually convenient basis during normal business hours to provide additional information and explanation of any material provided hereunder at the cost of the Indemnifying Party. The Indemnified Party and the Indemnifying Party shall use reasonable best commercial efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privilegesprivileges at the cost of the Indemnifying Party.
(c) This Section 11.5 shall not apply with respect to any tax matter and the provisions of Article X shall apply to any tax matter instead.
Appears in 1 contract
Samples: Technology License Agreement (Biohitech Global, Inc.)
Third-Party Claim Indemnification Procedures. (a) In Except as provided in Section 5.3 with respect to Tax Claims, in the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) calendar days following such Indemnified Party’s receipt of a Third-Third Party Claim, notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party shall have thirty (30) calendar days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Third Party Claim without the consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order conclusively acknowledge that it has an indemnity obligation with respect to ensure the proper and adequate defense of a Third-such Third Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Samples: Purchase Agreement (Sothebys)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article XSection 5.2(f)), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Third Party Claim, notify deliver a Claim Notice in respect of such Third Party Claim to the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”)Party; provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a an actual and material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of the Indemnified Party against such Third-Party Claim.
(b) In Subject to this Section 6.4(b), in the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense; provided, however, that the Indemnifying Party shall not have the right to direct and control the defense of any Third Party Claim if: (A) the Third Party Claim is in respect of any matter involving criminal liability; (B) the Indemnified Party is also a party to such Third Party Claim and Indemnified Party has been advised in writing by outside counsel that there are one or more legal defenses available to and likely to be used by the Indemnified Party that conflict with one or more of those available to and likely to be used by the Indemnifying Party; (C) such Third Party Claim involves any Governmental Entity as a party thereto; or (D) the Third Party Claim seeks as the primary cause of action the imposition of an equitable or injunctive remedy against the Indemnified Party or any of its Affiliates (other than equitable relief that is ancillary to claim for monetary damages). Once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them, or (ii) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, as provided in the first sentence of Section 6.4(c), in which case the Indemnified Party’s participation shall be at the cost of the Indemnifying Party. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; provided, however, provided that no such prior written consent shall be required if such settlement or compromise (i) would not result in the imposition of injunctive or other equitable relief on the Indemnified Party or any of its Affiliates, (ii) contains a full and unconditional release of each Indemnified Party that is a party to such Third Party Claim from any liability with respect to such claim, without prejudice, (iii) does not contain any finding or admission of a violation of Law or violation of the rights of any Person or suggestion of wrongdoing by the Indemnified Party or any of its Affiliates, (iv) does not contain any finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates and (v) any monetary liability of the Indemnified Party shall will be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party (i) is not entitled to or elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwiseotherwise or (ii) after assuming the defense of a Third Party Claim, fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten (10) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim. The Indemnified Party shall not settle a Third-Third Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld or delayed.
(d) The Indemnified Party and the Indemnifying Party shall reasonably cooperate in order to ensure the proper and adequate defense of a Third-Third Party Claim, including by providing reasonable access to each other’s relevant business records and other documents, and employeesemployees (provided that any confidential or privileged materials shall not be disclosed by the Indemnified Party other than as needed for the defense of the Third Party Claim, and the Indemnifying Party agrees to enter into a commercially reasonable confidentiality and non-use agreement with the Indemnified Party with respect to such information); it being understood that the costs and expenses of the Indemnified Party relating thereto shall be Losses.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Third Party Claim, notify the Indemnifying Party in writing of such Third-Third Party Claim, Claim and the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto ) (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party ClaimClaim or otherwise results in damages to the Indemnifying Party. The Indemnifying Party shall have thirty (30) 30 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim; it being understood that by assuming the defense of a Third Party Claim the Indemnifying Party shall conclusively acknowledge that it has an indemnity obligation with respect to such Third Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense defense, with counsel reasonably satisfactory to the Indemnified Party at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and counsel for the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them, or (ii) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, as provided in clause (i) of the first sentence of Section 9.4(c). The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; providedClaim on a basis that would result in (1) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall or any of its Affiliates, (2) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (3) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates, or (4) any monetary liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If The Indemnified Party shall have the right but not the obligation to assume its own defense if (i) the Indemnifying Party elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwisenotifying Indemnified Party that it will not provide a defense, (ii) the Indemnifying Party, after assuming the defense of a Third Party Claim, fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten days after receiving written notice from the Indemnified Party shall have to the right but not effect that the obligation Indemnifying Party has so failed, (iii) the claim for indemnification involves any criminal proceeding, indictment or allegation against the Indemnified Party, or (iv) the Indemnified Party has been advised by legal counsel that there may be one or more legal defenses available to assume its own defenseit which are different from or additional to those available to the Indemnifying Party; it being understood that the Indemnified Party’s right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim. The Indemnified Party shall not settle a Third-Third Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Third Party Claim, including by providing access to each other’s relevant business records and other documents, and employees; it being understood that the out-of-pocket costs and expenses of the Indemnified Party relating thereto shall be Losses.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Samples: Asset Purchase Agreement (Biomimetic Therapeutics, Inc.)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “"Indemnifying Party”") may have liability Liability to any indemnified party (an "Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), Party") hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “"Third-Party Claim”"), such Indemnified Party shall promptly, promptly (but in no event more than ten twenty (1020) days Business Days following such Indemnified Party’s receipt of a Third-such Third Party Claim, ) notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “"Claim Notice”"); provided, however, that the failure timely to give deliver a Claim Notice shall affect not relieve the rights Indemnifying Party of an Indemnified Party hereunder only its obligations hereunder, except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect is actually materially and adversely prejudiced by such failure to such Third-Party Claimdeliver a Claim Notice. The Indemnifying Party shall have thirty fifteen (3015) days Business Days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “"Notice Period”") to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim (a "Defense Notice"). Notwithstanding the foregoing, the Indemnifying Party shall not have the right to assume the conduct and control of the settlement or defense of such Third-Party Claim, notwithstanding timely delivery of its Defense Notice pursuant to this Section 7.4 if the Third-Party Claim seeks an injunction or other equitable remedy or if the Indemnified Party shall have been advised by counsel that there are one or more legal or equitable defenses available to the Indemnified Party and, in the reasonable opinion of the Indemnified Party, counsel for the Indemnifying Party could not adequately represent the Indemnified Party's interests because they conflict with those of the Indemnifying Party.
(b) The Indemnifying Party may contest and defend the claim. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense defense, with counsel reasonably satisfactory to the Indemnified Party at its the Indemnifying Party's expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosingdefense. The Indemnified Party shall participate in any such defense at its expense unless unless: (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them; or (ii) the Indemnified Party assumes the defense of a Third-Party Claim after the Indemnifying Party has failed to diligently pursue a Third-Party Claim it has assumed, as provided in Section 7.4(c)(iii), in which case the Indemnifying Party shall be liable for the reasonable fees and expenses of one separate counsel (in addition to any necessary local counsel). The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim on a basis that would result in: (A) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall or any of its Affiliates; (B) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates; (C) a finding or admission that would be required reasonably likely to have an adverse effect on other claims made or threatened against the Indemnified Party or any proposed settlement of its Affiliates of which the Indemnifying Party has actual (as opposed to constructive) Knowledge; (D) any monetary liability of the Indemnified Party that involves only the payment of money will not be promptly paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim ; or bringing such action (E) any non-monetary condition or obligation being imposed on any Indemnified Party or any of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityits Affiliates.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, (ii) is not entitled to defend the Third-Party Claim as a result of the Indemnified Party's election to defend the Third-Party Claim as provided in Section 7.4(a) or (iii) after assuming the defense of a Third-Party Claim, fails to take reasonable steps necessary to defend diligently such Third-Party Claim within ten (10) Business Days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; , it being understood that the Indemnified Party’s 's right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s 's relevant business records and other documents, documents and employees, it being understood that the reasonable external out-of-pocket costs and expenses incurred by the Indemnified Party relating thereto shall be considered Losses. The Indemnified Party and the Indemnifying Party shall keep each other fully informed with respect to the status of such Third-Party Claim, including by promptly furnishing any relevant third-party communications received by the Indemnifying Party.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information Confidential Information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying a party (in such capacity, an “Indemnifying PartyPerson”) may have liability to any Indemnified Party Person hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party Person by a third party (a “Third-Party Claim”), such Indemnified Party Person shall promptly, but in no event more than ten (10) thirty days following such Indemnified PartyPerson’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing Person of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim)ascertainable, any other remedy sought thereunder, any relevant time constraints relating thereto and, a reasonably detailed explanation of the events giving rise to the extent practicable, such Third-Party Claim and any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure to timely to give a Claim Notice shall affect not relieve the rights Indemnifying Person of an Indemnified Party hereunder only its obligations hereunder, except to the extent that the Indemnifying Person shall have been actually and materially prejudiced by such failure has a material prejudicial effect on or as provided in Section 8.1. Thereafter, the defenses or other rights available Indemnified Person shall deliver to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify Person, promptly following the Indemnified Party that it desires to assume the defense Person’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party against such Person relating to the Third-Party Claim.
(b) In the event that the Indemnifying Party Person notifies the Indemnified Party within the Notice Period Person that it desires elects to defend the Indemnified Party Person against a Third-Party Claim, the Indemnifying Party Person shall have the right to defend the Indemnified Party Person by appropriate proceedings and shall have the sole power to direct and control such defense at its expense; provided, however, that if any Indemnifying Person defends against, negotiates, settles or otherwise handles such Third-Party Claim in accordance with this Section 8.6, the attorney’s fees and other Losses incurred and paid by the Indemnifying Person in connection therewith shall reduce (by the amount thereof) the amount recoverable under this ARTICLE 8 by any such Buyer Indemnified Persons or Seller Indemnified Persons, as the case may be; provided, further, that, notwithstanding the foregoing, the Indemnifying Person shall not be entitled to assume the defense against such Third-Party Claim if such Third-Party Claim relates to Taxes. Once the Indemnifying Party Person has duly assumed made such election, the Indemnified Person shall have the right to participate in (but not control) any such defense and to employ separate counsel of its choosing at such Indemnified Person’s expense. Whether or not the Indemnifying Person assumes the defense of a Third-Party Claim, the Indemnified Party Person shall have the right, but not the obligation, to participate in admit any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Partyliability with respect to, settle, compromise or offer to settle or compromise any Third-Party Claim; provideddischarge, however, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming without the Indemnifying Person’s prior written consent unless the indemnifying party fails to diligently prosecute the defense of such Third-Party Claim. The Indemnified Party Notwithstanding any other provision of this Agreement, the Indemnifying Person shall not settle a enter into any settlement of any Third-Party Claim without the prior written consent of the Indemnified Person, provided, that if the Indemnifying Person assumes the defense of a Third-Party and/or Claim and is in good faith contesting such Third-Party Claim, the Indemnified Person shall agree to any settlement, compromise or discharge of a Third-Party Claim that the Indemnifying Person may reasonably recommend and that by its respective insurer.terms (i) is solely for money damages, (ii) obligates the Indemnifying Person to pay the full amount of Losses in connection with such Third-Party Claim(other than with respect to any Losses (or portion thereof) that are not required to be paid as a result of such Losses being (or portion thereof) within the Basket or in excess of the applicable limitation set forth in this ARTICLE 8) and (iii) unconditionally and irrevocably releases the Indemnified Person in connection with such Third-Party Claim. Notwithstanding anything to the contrary herein, the
(dc) The Indemnified Party Person and the Indemnifying Party Person shall reasonably cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing reasonable access to each other’s relevant business records books and other documentsrecords, and employees.
. Such cooperation shall include the retention and (eupon the Indemnifying Person’s request) the provision to the Indemnifying Person of books and records and information that are reasonably relevant to such Third-Party Claim and making employees and Representatives available on a mutually convenient basis during regular business hours to provide additional information and explanation of any material provided hereunder. The Indemnified Party Person and the Indemnifying Party Person shall use reasonable best commercial efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Pathward Financial, Inc.)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Any Indemnified Party shall promptlygive notice as promptly as is reasonably practicable to the Indemnifying Party of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto in respect of which indemnity intends to be sought under this Agreement; provided that the failure of the Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations under this Section 8.7 except to the extent (if any) that the Indemnifying Party shall have been prejudiced thereby. Following receipt of a notice from the Indemnified Party pursuant to this Section 8.7, the Indemnified Party shall permit the Indemnifying Party, at the Indemnifying Party’s election, to assume, at its own expense, the defense of any such claim, suit, action or proceeding with counsel selected by the Indemnifying Party (and not reasonably objected to by the Indemnified Party) if, but only if, the Indemnifying Party acknowledges in writing to the Indemnified Parties that it is obligated under this Agreement to indemnify them against all Losses they incur or have incurred in connection with such third party claim. The Indemnified Party shall not settle, compromise or consent to any judgment in respect of any such claim, suit, action or proceeding without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).
(b) Following the Indemnifying Party’s election to assume the defense of any claim, action or proceeding pursuant to Section 8.7(a), (i) the Indemnified Party shall deliver to the Indemnifying Party, in a timely fashion (which shall be no event more later than ten (10) days following such 10 Business Days after the Indemnified Party’s receipt of a Third-notice of such election), copies of all notices and documents (including court papers) received by the Indemnified Party Claimrelating to such claim, notify action or proceeding and (ii) the Indemnified Party shall use its commercially reasonable efforts at the Indemnifying Party’s expense (excluding internal costs) to cooperate in the defense or prosecution thereof as reasonably requested by the Indemnifying Party in writing the context of such Third-Party Claimthe relevant claim, action or proceeding (including the amount or the estimated amount quantum and nature of damages sought thereunder thereunder). Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the extent then ascertainable (which estimate shall not be conclusive Indemnifying Party of the final amount records and information that are reasonably relevant to such claim, action or proceeding, and making a reasonable number of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto andemployees reasonably available on a mutually convenient basis, to the extent practicable, provide additional information and explanation of any other material details pertaining thereto (a “Claim Notice”)provided hereunder; provided, however, that the failure timely to give foregoing shall be at the Indemnifying Party’s expense (excluding internal costs) and shall be organized in a Claim Notice manner as shall affect not unreasonably disrupt the rights normal operations of an the Indemnified Party hereunder only Party’s business having regard to the extent that context in which such failure has a material prejudicial effect on cooperation is requested and of the defenses relevant claim, action or other rights available to proceeding (including the Indemnifying Party with respect to such Third-Party Claim. quantum and nature of the damages sought thereunder).
(c) The Indemnifying Party shall have thirty (30) days (or such lesser number be liable for the reasonable fees and expenses of days set forth in the Claim Notice as may be required counsel employed by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume for any period during which the Indemnifying Party has not assumed the defense of a claim, action or proceeding for which the Indemnified Party against such Third-Party Claim.
is entitled to indemnification hereunder, except to the extent (bif any) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend been prejudiced by the Indemnified Party Party’s failure to give timely notice of such claim, action or proceeding as required by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once Section 8.7 (a).
(d) If the Indemnifying Party has duly assumed assumes the defense of a Third-Party Claimany claim, action or proceeding pursuant to Section 8.7(a), the Indemnified Party shall have the right, right (but not the obligation, duty) to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense counsel, at its expense unless own expense, separate from the counsel employed by the Indemnifying Party.
(e) If the Indemnifying Party does not elect to assume defense of any claim, action or proceeding pursuant to Section 8.7(a), the Indemnifying Party may nevertheless participate (but not control) and employ its own counsel (not reasonably objected to by the Indemnified Party), at its expense, in the defense of such claim, action or proceeding.
(f) Each party to this Agreement agrees to use its commercially reasonable efforts to cooperate and cause its employees to cooperate with and assist the appropriate Indemnifying Party and Indemnified Party in connection with defending any third party claim, action, proceeding or liability for which indemnity is sought hereunder, including, but not limited to claims, actions and proceedings with respect to which an Indemnifying Party has elected to assume or participate in the defense, including using its commercially reasonable efforts to mitigate any such claim, action, proceeding or liability for which indemnity is sought hereunder; provided, however, that if the Indemnified Party are both named parties fails to use commercially reasonable efforts to mitigate any claim, action, proceeding or liability, then notwithstanding anything else to the proceedings and contrary contained in this Agreement, such failure shall only affect the Indemnified Party’s right to indemnification with respect to such claim, action, proceeding or liability to the extent of any Losses that could reasonably be expected to have been avoided if the Indemnified Party shall have reasonably concludedhad made such commercially reasonable efforts.
(g) Subject to Sections 8.1(b), based on 8.2(b), 8.3, 8.4 and 8.5, the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall notmay, without the prior written consent of the Indemnified Party, settlesettle or compromise or consent to the entry of any judgment with respect to a claim or any litigation resulting therefrom which is the subject of Section 8.7 if such settlement, compromise or offer consent (i) includes an unconditional release of all the Indemnified Parties from all liability arising out of or related to settle such action or the subject matter thereof, (ii) includes no admission of fault or culpability by or on behalf of any Indemnified Party or its businesses, and (iii) provides for settlement or relief solely in the form of monetary damages to be paid fully by the Indemnifying Party. Any other type of settlement or compromise or consent to the entry of any Third-judgment shall not be undertaken by the Indemnifying Party Claim; provided, however, that no such without obtaining the prior written consent of the Indemnified Party to its terms, which consent shall not be required to any proposed settlement unreasonably withheld or delayed; provided that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, if the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that given such consent, the Indemnified Party’s right Party agrees that it shall, and shall cause its Affiliates to, submit to indemnification for a Thirdany non-Party Claim shall not be adversely affected by assuming the defense monetary relief of judgment arising out of or forming part of any such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurersettlement, compromise or consent.
(dh) The With respect to any third party claim, action or proceeding in relation to which an Indemnifying Party is required to indemnify an Indemnified Party pursuant to this Section 8.7 (an “Indemnified Claim”) that is combined or joined with one or more claims, actions or proceedings that are not Indemnified Claims or with respect to an Indemnified Claim under which both the Indemnified Party and the Indemnifying Party may be liable, which both desire to contest and control, the control of such claim, action or proceeding shall rest with the Person having the larger amount in dispute, and the Person in control may not settle or compromise any such claim without the prior written consent of the other Person (such consent not to be unreasonably withheld or delayed); provided, however, that if an Indemnifying Party acknowledges in writing that it is obligated to indemnify an Indemnified Party with respect to any Indemnified Claim, the Indemnifying Party, and not the Indemnified Party, shall be deemed to have the amounts of such Indemnified Claim in dispute.
(i) Whether or not the Indemnifying Party chooses to defend any claim involving a third party, all the parties hereto (i) shall cooperate in order to ensure the proper defense thereof and adequate defense of a Third-Party Claim(ii) shall furnish such records, including by providing access to each other’s relevant business records information and other documentstestimony, and employees.
attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. With respect to any claim subject to indemnification under this Section 8.7, the parties agree to cooperate in such a manner as to preserve in full (eto the extent possible) The Indemnified Party the confidentiality of all confidential information and the Indemnifying Party shall attorney-client and work-product privileges. In connection therewith, each party agrees that: (A) it will use its reasonable best efforts efforts, in respect of any claim in which it has assumed or participated in the defense, to avoid production of confidential information (consistent with Applicable Lawapplicable law and rules of procedure), and to cause (B) all communications among employees, counsel and others representing between any party hereto and counsel responsible for or participating in the defense of any claim shall, to a Third-Party Claim to the extent possible, be made so as to preserve any applicable attorney-client or work-product privilegesprivilege.
Appears in 1 contract
Samples: Asset Purchase Agreement (Inverness Medical Innovations Inc)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten fifteen (1015) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty fifteen (3015) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense defense, with counsel of its choosing, at its expenseexpense and shall be responsible (with no reservation of any rights) for all Losses and Liability relating to such Third-Party Claim or the defense thereof. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense at its expense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless Once the Indemnifying Party and assumes the defense of a Third-Party Claim, the Indemnifying Party agrees to keep the Indemnified Party are both named parties informed regarding the defense or settlement of such Third-Party Claim and to the proceedings and consider in good faith any suggestions made by the Indemnified Party shall have reasonably concluded, based on regarding the written advice defense or settlement of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themsuch Third-Party Claim. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, not to be unreasonably withheld, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would materially restrict the future activity or conduct of the Indemnified Party shall or any of its Affiliates, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates or (iii) any monetary liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party. Notwithstanding the foregoing, includes as an unconditional term thereof the granting Indemnified Party shall have the right, by notice to the person asserting Indemnifying Party, to retain control of the defense of any Third-Party Claim if such claim Third-Party Claim solely seeks non-monetary, equitable or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityinjunctive relief against Buyer or its Affiliates.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwiseotherwise or (ii) after assuming the defense of a Third-Party Claim, fails to take reasonable steps necessary to defend diligently such Third-Party Claim within fifteen (15) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use commercially reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(f) For the avoidance of doubt, contests and claims with respect to Taxes shall be governed by Section 5.4(g).
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party Third Party (other than with respect to any Pending Dispute, which shall be subject to the provisions of Section 5.26 and Section 7.2(c), and any matters relating to the Designated Interests, which shall be subject to the provisions of Section 5.27 and Section 7.2(d), a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days Business Days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, provided that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to provide such notice in a timely manner shall not affect its rights to indemnification under this Article VII except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to has been materially prejudiced by such Third-Party Claimfailure. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding proceedings in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate legal counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of outside legal counsel, that representation of both parties by the same legal counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim on a basis that (A) would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would materially restrict the future activity or conduct of the Indemnified Party shall be required to or any proposed settlement that involves only of its Affiliates or (ii) a finding or admission of a violation of Law or violation of the payment rights of money any Person by the Indemnifying Party, includes Indemnified Party or any of its Affiliates or (B) the offer to settle or compromise does not include as an unconditional term thereof the granting by the person asserting such claim or bringing such action provision of an unconditional release a release, in customary form, from all liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityThird-Party Claim by the applicable claimant or plaintiff to each Indemnified Party that is subject to such Third-Party Claim.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right right, but not the obligation obligation, to assume its own defense; defense (it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim) and in connection therewith employ legal counsel reasonably satisfactory to the Indemnifying Party to represent or defend such Indemnified Party against such a Third-Party Claim and the Indemnifying Party shall, subject to the other terms and conditions set forth in this Article VII, reimburse the Indemnified Party for the reasonable and documented fees and disbursements of such legal counsel; provided, however, that the Indemnifying Party shall not, in connection with any Third-Party Claim or any separate but substantially similar Third-Party Claims arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Parties, except to the extent that local legal counsel, in addition to such Indemnified Party’s regular counsel, is required in order to effectively defend against such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and records, other documents, documents and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, legal counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable privileges (including attorney-client or work-product privilegesprivilege).
Appears in 1 contract
Samples: Stock Purchase Agreement (Korn Ferry International)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Third Party Claim, notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party shall have thirty (30) 30 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such ThirdThird Party Claim unless the Indemnified Party has notified the Indemnifying Party in the Claim Notice that it has determined in good faith that there is a reasonable probability that such Third Party Claim may materially adversely affect it or its Affiliates other than as a result of monetary damages and the monetary component of the claim is not significant; it being understood that by assuming the defense of a Third Party Claim the Indemnifying Party shall conclusively acknowledge its obligation to indemnify the Indemnified Party with respect to all of such Third Party Claim. If the Indemnifying Party does not respond within such 30-day period (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter), the Indemnifying Party will be deemed to have accepted its obligation to indemnify the Indemnified Party with respect to all of such Third Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense defense, with counsel reasonably satisfactory to the Indemnified Party at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosingchoosing and at its own expense. The Indemnified Party shall participate in any such defense at its expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them, or (ii) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, as provided in the first sentence of Section 7.4(c). The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall or any of its Affiliates, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (iii) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates, or (iv) any monetary liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, (ii) is not entitled to defend the Third Party Claim as a result of the Indemnified Party’s election to defend the Third Party Claim as provided in Section 7.4(a), or (iii) after assuming the defense of a Third Party Claim, fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim. The Indemnified Party shall not settle a Third-Third Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Third Party Claim, including by providing access to each other’s relevant business records and other documents, and employees; it being understood that the costs and expenses of the Indemnified Party relating thereto shall be Losses.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Lawapplicable Laws), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability Liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, promptly notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim)ascertainable, any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, and any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect not relieve the rights Indemnifying Party of an any Liability that it may have to any Indemnified Party hereunder only except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party is prejudiced thereby. If the Indemnifying Party objects to or contests all or any part of the Third Party Claim, the Indemnified Party shall be free to seek enforcement of its rights to indemnification under this Agreement with respect to such Third-Third Party Claim. The Indemnifying Party shall have thirty (30) 30 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim unless (i) the Third Party Claim has been brought or asserted by a Government Entity, (ii) there is a conflict of interest that would make it inappropriate (on advice of counsel) for the same counsel to represent both the Indemnified Party and the Indemnifying Party, (iii) such Third Party Claim relates to Taxes, or (iv) the Third Party claims seeks injunctive or equitable remedies other than monetary damages against the Indemnified Party, in which case the Indemnified Party may retain the exclusive right to defend, compromise or settle such Third Party Claim, but the Indemnifying Party will not be bound by any determination of any Third Party Claim so defended for the purposes of this Agreement or any compromise or settlement effected without its consent (which may not be unreasonably withheld).
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expensedefense, with counsel reasonably satisfactory to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based concluded (on the written advice of counsel, ) that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall or any of its Affiliates, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, or (iii) any monetary Liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, or (ii) is not entitled to defend the Third Party Claim as provided in Section 6.4(a), the Indemnified Party shall have the right but not the obligation to assume maintain its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerdefense.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Third Party Claim, including by keeping the other party reasonably informed of the status of such Third Party Claim and any related Proceedings at all stages thereof where such party is not represented by its own counsel, and by providing access to each other’s relevant business records and other documents, and employees; it being understood that the costs and expenses of the Indemnified Party relating thereto shall be Losses (but only to the extent that the Third Party Claim is ultimately subject to indemnification under this Agreement).
(e) The Indemnified Party and the Indemnifying Party shall use their respective reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Samples: Asset Purchase Agreement (Windtree Therapeutics Inc /De/)
Third-Party Claim Indemnification Procedures. (a) In the event that Upon any written Indemnified Party’s receipt of notice of assertion of any claim or demand by a third party against an Indemnified Party for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party hereunder (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten twenty (1020) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then reasonably ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall not affect the rights of an Indemnified Party hereunder only hereunder, except to the extent that such failure has a material prejudicial effect on materially prejudices the defenses Indemnifying Party’s defense of, or other rights available to the Indemnifying Party with respect to to, such Third-Party Claim. The Indemnifying Party shall have thirty twenty (3020) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding a Proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim; provided, however, that the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third-Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (i) the Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (ii) the Indemnifying Party has failed to defend or is failing to defend in good faith the Third-Party Claim, (iii) the Indemnifying Party and the Indemnified Party (other than SPC) are both named parties to the Proceedings and the Indemnified Party shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (iv) in the case of a Acquiror Indemnified Party, it is reasonably likely that the Losses arising from such Third-Party Claim will exceed the amount such Acquiror Indemnified Party will be entitled to recover as a result of the limitations set forth in Section 9.2(b); provided, further, that prior to assuming control of such defense, the Indemnifying Party must acknowledge that it would have an indemnity obligation for any Losses resulting from such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party ClaimClaim and subject to Section 9.4(a), the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The In the event the Indemnified Party shall elects to participate in any such defense at its expense unless defense, the Indemnifying Party and shall not be liable to the Indemnified Party are both named parties to the proceedings and for any fees of counsel or other expenses incurred by the Indemnified Party shall have reasonably concluded, based on in connection with the written advice defense of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themsuch Third-Party Claim. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written consent of Claim unless (i) the Indemnifying Party shall have agreed to indemnify and hold the Indemnified Party harmless from and against any and all Losses caused by or arising out of any such settlement or compromise, (ii) such settlement or compromise shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes include as an unconditional term thereof the granting giving by the person asserting such claim or bringing such action claimant of an unconditional a release of the Indemnified Party from all liability to all Indemnified Parties with respect to such claim Third-Party Claim, and does not include (iii) such settlement or compromise involves no relief affecting the Indemnified Party including any admission of culpabilityadverse tax impact.
(c) If the Indemnifying Party (i) is not entitled to defend a Third-Party Claim, (ii) elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwiseotherwise or (iii) after assuming the defense of a Third-Party Claim, fails to take reasonable steps necessary to defend diligently such Third-Party Claim within 10 days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood provided, however, that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim for which the Indemnifying Party may have liability hereunder without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld.
(d) The With respect to any Third-Party Claim subject to indemnification under Article IX: (i) both the Indemnified Party and the Indemnifying Party, as the case may be, shall keep the other Person fully informed of the status of such Third-Party shall Claim and any related Proceedings at all stages thereof where such other Person is not represented by its own counsel, (ii) the parties agree (each at its own expense) to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of a any Third-Party Claim and (iii) if the Stockholders’ Representative is the Indemnifying Party, Acquiror shall cause SPC, each Affiliate of SPC and each Radio Subsidiary to, and SPC, each Affiliate of SPC and each Radio Subsidiary shall, take all actions and do all things necessary or desirable to permit or otherwise enable the Stockholders’ Representative to assume and maintain control of the defense of any Third-Party Claim, including by providing access to each other’s relevant business records executing, signing and delivering all instruments, agreements, contracts or other documentsdocuments necessary or desirable in connection with the foregoing (including, and employeeswhere applicable, powers of attorney or IRS Form 8821 (Tax Information Authorization) or a successor form).
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In Except as provided in Section 5.3 with respect to Tax Claims, in the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) -36- may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) calendar days following such Indemnified Party’s receipt of a Third-Third Party Claim, notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party shall have thirty (30) calendar days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Third Party Claim without the consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order conclusively acknowledge that it has an indemnity obligation with respect to ensure the proper and adequate defense of a Third-such Third Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Samples: Purchase Agreement
Third-Party Claim Indemnification Procedures. (a) In the event that If any written claim or demand for which an indemnifying party (an “Indemnifying Party”) Party may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim)ascertainable, any other remedy sought thereunder, any relevant time constraints relating thereto andthereto, a reasonably detailed explanation of the events giving rise to the extent practicable, such Third-Party Claim and any other material details pertaining thereto (a “Claim Notice”); provided, however, provided that the failure to timely to give a Claim Notice shall affect not relieve the rights Indemnifying Party of an Indemnified Party hereunder only its obligations hereunder, except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or been actually prejudiced by such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify failure. Thereafter, the Indemnified Party that it desires shall deliver to assume the defense Indemnifying Party, promptly following the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party against such relating to the Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires connection with any claim which may give rise to defend the Indemnified Party against indemnity hereunder resulting from or arising out of a Third-Party ClaimClaim solely for money damages, the Indemnifying Party, at the sole cost and expense of the Indemnifying Party, may, upon written notice given to the Indemnified Party, and assume the defense of any such claim or Action; provided that prior to assuming control of such defense, the Indemnifying Party must (i) acknowledge that it would have an indemnity obligation for the Losses resulting from such Third-Party Claim as provided under this Article 8 and (ii) furnish the Indemnified Party with a written statement that Seller does not reasonably believe that the Losses resulting from such Third-Party Claim would exceed the number of Holdback Shares available to offset the Losses pursuant to Section 8.8. If the Indemnifying Party assumes the defense of any such claim or Action, the Indemnifying Party shall have the right select counsel to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed conduct the defense of a Third-Party Claimsuch claims or legal proceedings and, at the Indemnified Party sole cost and expense of the Indemnifying Party, shall have take all steps it deems necessary or appropriate in the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosingor settlement thereof. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such defense action, with its own counsel and at its expense unless own expense. If the Indemnifying Party and does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date it receives written notice of such claim from the Indemnified Party: (i) the Indemnified Party are both named parties may defend against such claim or litigation at the Indemnifying Party’s expense in such manner as the Indemnified Party may deem necessary or appropriate, including, but not limited to, settling such claim or litigation on such terms as the Indemnified Party may deem appropriate, and (ii) the Indemnifying Party shall be entitled to participate in (but not control) the proceedings defense of such action, with its counsel and at its own expense; provided, however, that the Indemnified Party shall have reasonably concludednot settle or compromise any Third-Party Claim without the prior written consent of the Indemnifying Party (such consent not to be unreasonably withheld or delayed), based on unless such settlement includes a full release of the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. Indemnifying Party from such Third-Party Claim.
(c) The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim if the terms of such settlement would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent of would apply to the Indemnified Party shall be required to any proposed settlement that involves only the payment Party, or (ii) a finding or admission of money a violation of Law by the Indemnifying Indemnified Party, includes as an unconditional term thereof the granting by the person asserting such claim . Whether or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend assumes the Indemnified Party against defense of a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of admit any liability with respect to, settle, compromise or discharge, such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of Indemnifying Party’s prior written consent. If the Indemnifying Party and/or assumes the defense of a Third-Party Claim and is in good faith contesting such Third-Party Claim, the Indemnified Party shall not unreasonably withhold its respective insurerconsent to any settlement, compromise or discharge of a Third-Party Claim that the Indemnifying Party may reasonably recommend and that by its terms (i) obligates the Indemnifying Party to pay the full amount of Losses in connection with such Third-Party Claim, other than with respect to any Losses (or portion thereof) that are not required to be paid as a result of the limitations set forth in Section 8.4 and (ii) releases the Indemnified Party in connection with such Third-Party Claim.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing reasonable access to each other’s relevant business records Books and other documentsRecords, and employees.
. Such cooperation shall include the retention and (eupon the Indemnifying Party’s request) the provision to the Indemnifying Party of Books and Records and information that are reasonably relevant to such Third-Party Claim, and making employees and Representatives available on a mutually convenient basis during normal business hours to provide additional information and explanation of any material provided hereunder. The Indemnified Party and the Indemnifying Party shall use reasonable best commercial efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Genasys Inc.)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) Buyers may have liability any Liability to any Seller Indemnified Party hereunder or for which Seller and Members may have any Liability to any Buyer Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Seller Indemnified Party or Buyer Indemnified Party, as applicable (each, an "INDEMNIFIED PARTY"), by a third party (a “Third-Party Claim”"THIRD PARTY CLAIM"), such Indemnified Party Seller and Members on the one hand, or Buyers on the other hand, shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, promptly notify the Indemnifying Party in writing other of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party Buyers and Members or Seller, as applicable, shall then have thirty (30) 30 days (or such lesser number of days set forth in the notice of the Third Party Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the notice of the Third Party Claim Notice (the “Notice Period”) to notify the other and such Indemnified Party that it desires to assume the defense of the Indemnified Party against defend such Third-Third Party Claim.
(b) In the event that Buyers on the Indemnifying Party notifies one hand, or Seller and Members on the other hand, notify the other and such Indemnified Party within such 30-day period (or such shorter period as provided in the Notice Period notice of the Third Party Claim or as required by a court proceeding) that it desires to defend the such Indemnified Party against a Third-Third Party Claim, the Indemnifying Party such party shall have the right to defend the Indemnified Party by appropriate proceedings using counsel reasonably satisfactory to the Indemnified Party and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party a party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall notNo party shall, without the prior written consent of the each Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall be required to or any proposed settlement that involves only of its Affiliates, (ii) a finding or admission of a violation of Law or violation of the payment rights of money any Person by the Indemnifying PartyIndemnified Party or any of its Affiliates, includes as (iii) a finding or admission that would have an unconditional term thereof adverse effect on other claims made or threatened against the granting Indemnified Party or any of its Affiliates, or (iv) any monetary Liability of the Indemnified Party that will not be promptly paid or reimbursed by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityparty.
(c) If Buyers on the Indemnifying Party elects one hand, or Seller and Members on the other hand, as applicable, (i) elect not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwiseotherwise or (ii) after assuming the defense of a Third Party Claim, fail to take reasonable steps necessary to defend diligently such Third Party Claim, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s 's right to indemnification for a Third-Third Party Claim shall not be adversely affected by such Indemnified Party's assuming the defense of such Third-Third Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party Such party and the Indemnifying Indemnified Party shall cooperate in order to ensure the proper and adequate defense of a Third-Third Party Claim, including by providing access to each other’s 's relevant business records and other documents, and employees; IT BEING UNDERSTOOD THAT the costs and expenses of the Indemnified Party relating thereto shall be Losses.
(e) The Indemnified Party Such party and the Indemnifying Indemnified Party shall use reasonable best efforts to avoid production of confidential information Confidential Information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(f) Notwithstanding anything in this SECTION 7.3 to the contrary, (i) the Indemnified Party shall have full control over the defense of any Third Party Claim involving Taxes and the Indemnified Party shall not be required to provide any other party hereto with access to the Indemnified Party's Tax Returns or any other Tax information or proceedings that the Indemnified Party reasonably deems to be confidential; and (ii) if there is a reasonable probability that a Third Party Claim may materially and adversely affect an Indemnified Party other than as a result of money damages or other monetary payments, including without limitation, any Third Party Claim (a) relating to or arising out of any criminal proceeding, action, indictment, allegation or investigation, or (b) seeking an injunction or other equitable relief against the Indemnified Party, the Indemnified Party shall have the right to control the prosecution, defense or settlement of such Third Party Claim. In all of the foregoing cases, such party shall nevertheless pay the reasonable fees and expenses of counsel retained by the Indemnified Party in the foregoing circumstances.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Firstplus Financial Group Inc)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Party entitled to indemnification under Section 8.2 or Section 8.3 (an “Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), Party”) is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Third Party Claim, notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder under this Agreement only to the extent that such failure has a material prejudicial effect on the amount of Losses or on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties Parties by the same counsel would be inappropriate due to actual or potential differing material interests between themthem or (ii) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, as provided in the first sentence of Section 8.4(c). The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall or any of its Affiliates, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (iii) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates or (iv) any monetary liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwiseotherwise or (ii) after assuming the defense of a Third Party Claim, fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim. The Indemnified Party shall not settle a Third-Third Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Third Party Claim, including by providing access to each other’s relevant business records and other documents, and employees; it being understood that the costs and expenses of the Indemnified Party relating thereto shall be Losses.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(f) Notwithstanding anything in Article VIII to the contrary but subject to this Section 8.4(f), the Parties agree that from the date hereof Philips shall have the sole right to defend and/or settle the Company X Claims as well as any claims by which recourse is sought against any suppliers of the red phosphorus molding compound (or any of their Affiliates, agents or intermediaries) (collectively, the “Related Claims”) and the sole power to direct and control such defense and/or settlement at its cost. Philips undertakes to keep Newco informed on all material developments concerning the Company X Claims and the Related Claims. Newco shall, and shall cause the Company and the Company Subsidiaries to, cooperate in all commercially reasonable ways with Philips and at Philips’ cost and expense (except as set forth below) in connection with the defense and/or settlement of the Company X Claims and any Related Claims, including without limitation by (i) furnishing promptly all information requested by Philips that may be necessary or desirable in connection with such defense and/or settlement or that otherwise relates to the Company X Claims or any Related Claims, (ii) providing personnel (including, but not limited to, Gxxxx Xxxxxxx, Koen vxx Xxxxxx, Eef Bagerman, Wxxxxx Xxxxxxxxxxx, Axxxx Xxxxxx, Fxxxxxxx Xxxxxxxx, Lxxxxxx Xxxxxxx and Mxxxxx Xxxxxxxxxx, all of whom shall cooperate in relation to the Company X Claims and any Related Claims in the same manner as prior to the date hereof) as requested by and at no cost to Philips (other than for reasonable out of pocket expenses) and (iii) consulting and cooperating with Philips in the preparation of analyses, appearances, presentations, memoranda, briefs, arguments, opinions, filings, notifications and proposals made or submitted by Philips in connection with the Company X Claims or any Related Claims. In addition, Newco shall, and shall cause the Company and the Company Subsidiaries to, take all actions reasonably requested by Philips to facilitate resolution of the Company X Claims and any Related Claims provided that (i) such actions are not unduly disruptive to the Business and (ii) Philips reimburses Newco, the Company and the Company Subsidiaries for all costs and expenses associated with such actions (including costs and expenses in the form of discounts granted by the Company on future purchases to be made by Company X as part of any settlement, which costs and expenses shall be set off against any benefits to the Company that may arise in the context of such settlement). The final sentence of Section 8.4(b) shall apply equally to this Section 8.4(f).
Appears in 1 contract
Samples: Stock Purchase Agreement (Koninklijke Philips Electronics Nv)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) Person may have liability Liability to any Indemnified Party Person hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party Person by a third party (a “Third-Party Claim”), such Indemnified Party Person shall promptly, but in no event more than ten (10) days following such Indemnified PartyPerson’s receipt of a Third-Party Claim, notify the Indemnifying Party Person in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim)ascertainable, any other remedy sought thereunder, any relevant time constraints relating thereto andof which the Indemnified Person is then aware, and a reasonably detailed explanation of the events giving rise to the extent practicable, such Third-Party Claim and any other material details pertaining thereto of which the Indemnified Person is then aware (a “Claim Notice”); provided, however, that the failure to timely to give a Claim Notice shall affect not relieve the rights Indemnifying Person of an Indemnified Party hereunder only its obligations hereunder, except to the extent that the Indemnifying Person shall have been actually and materially prejudiced by such failure has a material prejudicial effect on or as provided in Section 7.1. Thereafter, the defenses or other rights available Indemnified Person shall deliver to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify Person, promptly following the Indemnified Party that it desires to assume the defense Person’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party against such Person relating to the Third-Party Claim.
(b) In the event that the Indemnifying Party Person notifies the Indemnified Party within the Notice Period Person that it desires elects to defend the Indemnified Person against a Third-Party against Claim within thirty (30) days following the receipt of notice from the Indemnified Person of a Third-Party Claim, the Indemnifying Party Person shall have the right to defend the Indemnified Third-Party Claim which relates to any Losses indemnifiable hereunder by appropriate proceedings and with counsel reasonably satisfactory to the Indemnified Person and shall have the sole power to direct and control such defense at its expense, subject, solely in the case of a Third Party Claim received after the Indemnity Escrow Account has been released or exhausted in full, to the Indemnifying Person’s (i) acknowledging its indemnity obligation hereunder and undertaking to indemnify and hold the Indemnified Person harmless from, against and in respect of, and to pay to such Indemnified Person the full amount of any Losses arising out of, relating to or resulting therefrom (subject to any applicable limitations on such obligations set forth in this Agreement), and (ii) providing the Indemnified Person with evidence reasonably acceptable to the Indemnified Person that the Indemnifying Person will have the financial resources to defend against such Third-Party Claim and to fulfill its indemnification obligations hereunder. Notwithstanding the foregoing, the Indemnifying Person shall not have the right to assume the conduct and control of such defense if the Third-Party Claim which the Indemnifying Person seeks to assume control: (A) seeks monetary relief in excess of the purchase price actually paid hereunder; (B) seeks any non-monetary relief (including an injunction or other equitable relief) as the primary remedy against an Acquired Company or as any remedy that, if adversely decided, would apply to Buyer or any of its Affiliates (but excluding any Acquired Company); (C) involves criminal allegations; (D) involves a claim that, in the good faith and reasonable judgment of the Indemnified Person, the Indemnifying Person failed or is failing to reasonably prosecute or defend; (E) if the Indemnifying Person is a Seller, is asserted by or on behalf of a Person that is a significant supplier or significant customer of Buyer or any of its Affiliates (but excluding any Acquired Company); (F) relates to Taxes or (G) involves a claim by a Governmental Authority. Once the Indemnifying Person has made such election, the Indemnified Person shall have the right to participate in (but not control) any such defense and to employ separate counsel of its choosing at such Indemnified Person’s expense (unless based on the advice of counsel to the applicable Indemnified Person, a material legal conflict exists between the applicable Indemnified Person and the Indemnifying Person that would make such separate representation necessary, in which case the Indemnifying Person will bear such expense, subject to the limitations set forth herein). If the Indemnifying Person does not (or is not permitted to) elect to conduct or control the defense of any Third-Party has duly assumed Claim which relates to any Losses indemnifiable hereunder, the applicable Indemnified Person may conduct and control the defense of such Third-Party Claim; provided, that the Indemnified Person shall not settle, offer to settle or compromise such Third-Party Claim without the prior written consent of the Indemnifying Person (such consent not to be unreasonably withheld, conditioned or delayed).
(c) If the Indemnifying Person assumes the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party Person shall not, without the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed, it being understood that withholding, delaying and/or conditioning consent to any settlement or compromise that involves anything other than payment of monetary damages shall be deemed to be reasonable per se) of the Indemnified PartyPerson, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, howeverthat, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by if the Indemnifying Party, includes as an unconditional term thereof Person assumes the granting by the person asserting defense of a Third-Party Claim and is in good faith contesting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice Person’s consent is not required for any settlement, compromise or discharge of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected that the Indemnifying Person may reasonably recommend and that by assuming its terms (i) obligates the defense Indemnifying Person to pay the full amount of Losses in connection with such Third-Party Claim. The , (ii) does not require any payment or other action by any Indemnified Party shall not settle a Person or the admission of any wrongdoing or misconduct by any Indemnified Person and (iii) fully and irrevocably releases all Indemnified Persons in connection with such Third-Party Claim without the consent of the Indemnifying Party and/or and does not impose any injunctive or other equitable relief against any Indemnified Person or its respective insurerAffiliate.
(d) The Indemnified Party Person and the Indemnifying Party Person shall reasonably cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing reasonable access to each other’s relevant business books and records, and appropriate personnel. Such cooperation shall include the retention and (upon the Indemnifying Person’s request and sole expense) the provision to the Indemnifying Person of books and records and other documentsinformation that are reasonably relevant to such Third-Party Claim, and employees.
(e) appropriate personnel available on a mutually convenient basis during normal business hours to provide additional information and explanation of any material provided hereunder. The Indemnified Party Person and the Indemnifying Party Person shall use reasonable best commercial efforts to avoid production of confidential information (consistent with Applicable applicable Law), to cooperate with the other Party to minimize the extent of such disclosure and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privilegesprivileges (which may include redacting or withholding information as reasonably appropriate).
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (other than a claim by a Taxing authority for Taxes) (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten thirty (1030) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial an adverse effect on the resolution of the Third-Party Claim or on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim. Notwithstanding anything to the contrary contained herein, to the extent that Buyer reasonably expects that the Losses resulting from a Third-Party Claim would not, when aggregated with all other Losses for which Seller has previously indemnified Buyer Indemnified Parties pursuant to this Agreement or would reasonably be expected to indemnify Buyer Indemnified Parties in the future (based on information available at such time), exceed the Indemnity Threshold, Buyer shall have the right to defend such Third-Party Claim and shall have the sole power to direct and control such defense.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expensedefense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosingdefense. The If the Indemnified Party shall participate in any such defense defense, it shall participate at its sole cost and expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties by the same counsel would be inappropriate inappropriate, due to actual a non-waivable conflict, or potential differing material interests between them(ii) the Indemnified Party assumes the defense of a Third-Party Claim after the Indemnifying Party has failed to diligently pursue a Third-Party Claim it has assumed, in which case the Indemnifying Party shall be liable for the reasonable and documented fees and expenses of one separate counsel (in addition to any necessary local counsel) to the extent such Third-Party Claim is subject to indemnification or reimbursement under Section 8.2 or Section 8.3. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, howeverinjunction or decree that would restrict the future activity or conduct of the Indemnified Party, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party, (iii) a finding or admission that no such prior written consent would have an adverse effect on other claims made or threatened against the Indemnified Party, or (iv) except to the extent within the amounts set forth in Section 8.3(b) if applicable, any monetary liability of the Indemnified Party shall that will not be required to any proposed settlement that involves only the payment of money paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, (ii) is not entitled to defend the Third-Party Claim as a result of the Indemnified Party’s election to defend the Third-Party Claim as provided in Section 8.4(b) hereof, or (iii) after assuming the defense of a Third-Party Claim, fails to take reasonable steps necessary to defend diligently such Third-Party Claim, the Indemnified Party shall have the right but not the obligation to assume provide its own defensedefense and shall consult with the Indemnifying Party regarding the strategy for defense of such claim, including with respect to the Indemnified Party’s choice of legal counsel; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming whether it assumes the defense of such Third-Party Claim. The Indemnified Party shall not settle have no liability with respect to a Third-Party Claim without the consent settled in violation of the Indemnifying Party and/or its respective insurerlast sentence of Section 8.4(b).
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employeesemployees (including, if necessary, availability for depositions and testifying); it being understood that the reasonable and documented costs and expenses of the Indemnified Party relating thereto shall be considered Losses. The Indemnified Party and the Indemnifying Party shall keep each other fully informed with respect to the status of such Third-Party Claim.
(e) The Indemnified Party and the Indemnifying Party shall use commercially reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privilegesprivileges (if applicable).
(f) Each of Buyer and Seller hereby consents to the non-exclusive jurisdiction of any court in which a Third-Party Claim is brought for purposes of any claim for indemnification or reimbursement with respect to such Third-Party Claim or the matters alleged therein.
Appears in 1 contract
Samples: Securities Purchase Agreement (Frontier Communications Corp)
Third-Party Claim Indemnification Procedures. (ai) In the event that If any written claim or demand for which an indemnifying party (an “Indemnifying Party”) Party may be reasonably expected to have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party party, including a Government Entity (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, promptly notify the Indemnifying Party (or the Shareholder Representative, where the Indemnifying Party is a Shareholder or a Participating Optionholder (each a “Shareholder Indemnifying Party”) and indemnification is not being sought hereunder directly from such Shareholder Indemnifying Party) in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto Claim (a “Third Party Claim Notice,” collectively with Direct Claim Notices, “Claim Notices”); provided, however, that the failure timely to give a timely Third Party Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party ClaimClaim or the quantum of such Third Party Claim (including all interest and other penalties which may accrue as a result of such delay). The Indemnifying A Third Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of shall contain a litigated matter) after receipt brief summary of the Claim Notice (facts underlying or relating to such claim to the “Notice Period”) to notify extent then known by the Indemnified Party and a copy of any correspondence or notice received from the relevant third party and a statement that it desires to assume the defense of the Indemnified Party against seeks indemnification for Losses relating to such Third-Third Party Claim.
(bii) In the event that of a Third Party Claim against an Indemnified Party, the Indemnifying Party, or, where the Indemnifying Party notifies is a Shareholder Indemnifying Party, the Indemnified Shareholder Representative, shall be entitled on behalf of the Shareholder Indemnifying Parties (or in the event indemnification is being sought hereunder directly from a Shareholder Indemnifying Party, such Shareholder Indemnifying Party within shall be entitled), at its expense, to participate in, but not to determine or conduct, the Notice Period that it desires to defend the Indemnified Party against a Third-defense of such Third Party Claim, the Indemnifying . The Indemnified Party shall have the right in its sole discretion to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed conduct the defense of a Third-Party Claimof, the Indemnified Party shall have the rightand to settle, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; provided, however, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties except with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party and Parties, or, where the Indemnifying Party is a Shareholder Indemnifying Party, the Shareholder Representative (or, in the event indemnification is being sought hereunder directly from a Shareholder Indemnifying Party, such Shareholder Indemnifying Party), no settlement of any such Third Party Claim with third party claimants shall cooperate be determinative of the amount of Losses relating to such matter. If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Losses hereunder, then any amounts incurred or accrued by the Parent Indemnified Party in order to ensure the proper and adequate defense of a Third-such Third Party Claim, including by providing access regardless of the outcome of such claim, shall be deemed Losses hereunder. In the event that the Shareholder Representative (or, in the event indemnification is being sought hereunder directly from a Shareholder Indemnifying Party, such Shareholder Indemnifying Party) has consented to each other’s relevant business records and other documentsany such settlement, and employees.
(e) The Indemnified Party and the Shareholder Indemnifying Party Parties shall use reasonable best efforts have no power or authority to avoid production object under any provision of confidential information (consistent with Applicable Law), and this Article VIII to cause all communications among employees, counsel and others representing the amount of any party to a Third-Third Party Claim by Parent against the Special Escrow Fund, the Escrow Fund, or against the Shareholder Indemnifying Parties directly, as the case may be, with respect to be made so as to preserve any applicable attorney-client or work-product privilegessuch settlement.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party the Seller, the Purchaser or the Company (each, an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) calendar days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) calendar days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its own expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third- Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall or any of its Affiliates, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, or (iii) any monetary liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof . The Indemnifying Party shall not be liable for fees and expenses of more than one counsel for the granting by the person asserting such claim or bringing such action Indemnified Party (except for fees and expenses of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilitylocal counsel).
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, documents and employees; it being understood that the costs and expenses of the Indemnified Party relating thereto shall be Losses for purposes of Section 8.2(a).
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Lawexcept as required by applicable Law and accorded appropriate confidentiality protection), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
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Third-Party Claim Indemnification Procedures. (a) In the event that any written Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to made by any third Person against the Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Third Person Claim”)) shall notify the Indemnitor in writing, and in reasonable detail, of the Third Person Claim within fifteen (15) Business Days (or reasonably more promptly dependent upon the circumstances) after receipt by such Indemnified Party of written notice of such Third Person Claim. Thereafter, the Indemnified Party shall promptlydeliver to the Indemnitor, but in no event more than within ten (10) days following such Business Days after the Indemnified Party’s receipt thereof, copies of a Third-Party Claim, notify all notices and documents (including court papers) received by the Indemnifying Party in writing of Indemnitor relating to such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto Third Person Claim (a “Third Person Claim Notice”). Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall refer to the provision of this Agreement upon which such claim is based and describe in reasonable detail (to the extent known) the facts giving rise to an alleged basis for the claim and the amount of the liability asserted against the Indemnitor by reason of such Third Person Claim; provided, however, that the failure timely or delay of the Indemnified Party to give a Claim Notice notice to the Indemnitor as provided in this Section 10.5 shall affect not relieve the rights Indemnitor of an Indemnified Party its obligations hereunder only except to the extent that the Indemnitor shall have been actually prejudiced by such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claimfailure. The Indemnifying Party Indemnitor shall have thirty (30) days Business Days (or such lesser number of days as set forth in the Third Person Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Third Person Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Third Person Claim.
(b) In the event that the Indemnifying Party Indemnitor notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Third Person Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and Indemnitor shall have the sole power and absolute right after the receipt of notice, at its option and at its own expense, to direct be represented by counsel of its choice and control to control, defend against, negotiate, settle or otherwise deal with such defense Third Person Claim; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. Once ; provided further, however, that the Indemnifying Party has duly assumed Indemnitor shall not be entitled to assume or continue control of the defense of any Third Person Claim if (i) the Third Person Claim relates to or arises in connection with any criminal or regulatory proceeding, (ii) based on the advice of outside legal counsel to the Indemnified Party, a Third-conflict (including the availability of different or additional defenses) exists between the Indemnified Party and the Indemnitor in connection with such Third Person Claim or conduct of claim by the Indemnitor would compromise any legal privilege or similar doctrine with respect to the Indemnified Party or any of its Affiliates or (iii) the Third Person Claim primarily seeks (x) an injunction against the Indemnified Party or (y) where the Indemnified Party is a Parent Indemnified Party, equitable relief requiring the taking of action or the refraining from taking actions by Parent. The Indemnified Party agrees to cooperate fully and in good faith with the Indemnitor in connection with the defense, negotiation or settlement of any Third Person Claim. To the extent the Indemnitor elects not to defend such Third Person Claim by written notice to the Indemnified Party, the Indemnified Party may retain counsel at the expense of the Indemnitor, which counsel shall have be reasonably acceptable to the rightIndemnitor, but not and control the obligationdefense of such proceeding; provided, however, that the Indemnitor shall be obligated pursuant to participate this Section 10.5 to pay for only one firm of counsel for all Indemnified Parties in addition to any such defense and local counsel who may need to employ separate counsel of its choosingbe retained. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party Indemnitor shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, Third Person Claim on a basis that no such prior written consent would not include an unconditional release of the Indemnified Party shall be required to and would (i) exceed the balance of the Indemnitor’s indemnity obligations hereunder if the Indemnified Party is a Stockholder, or exceed the Indemnity Escrow Amount, if the Indemnified Party is a Parent Indemnified Party, (ii) result in the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any proposed settlement that involves only of its Affiliates, (iii) result in a finding or admission of a violation of Law or violation of the payment rights of money any Person by the Indemnifying Party, includes as an unconditional term thereof Indemnified Party or any of its Affiliates or (iv) impose ongoing obligations on the granting by Indemnified Party following the person asserting date of such claim settlement or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilitycompromise.
(c) If the Indemnifying Party Indemnitor (i) elects not to defend the Indemnified Party against a Third-Party Third Person Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwiseotherwise or (ii) after assuming the defense of a Third Person Claim, fails to take reasonable steps necessary to defend diligently such Third Person Claim within ten (10) days after receiving written notice from the Indemnified Party to the effect that the Indemnitor has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Third Person Claim shall not be adversely affected by assuming the defense of such Third-Party Third Person Claim. The Indemnified Party shall not settle a Third-Party Third Person Claim seeking money damages without the consent of the Indemnifying Party and/or its respective insurerIndemnitor, which consent shall not be unreasonably withheld.
(d) The Indemnified Party and the Indemnifying Party Indemnitor shall reasonably cooperate in order to ensure the proper and adequate defense of a Third-Party Third Person Claim, including by providing access to each other’s relevant business records and other documents, documents and employees; it being understood that the reasonable documented costs and expenses of the Indemnified Party relating thereto shall constitute Losses.
(e) The Indemnified Party and the Indemnifying Party Indemnitor shall use reasonable best efforts to avoid production or other disclosure of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Third Person Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Samples: Merger Agreement (United Rentals North America Inc)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), Section 2.14) is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Third Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Third Party Claim, notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party shall have thirty (30) 30 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim unless the Indemnified Party has notified the Indemnifying Party in the Claim Notice that it has determined in good faith that there is a reasonable probability that such Third Party Claim may adversely affect it or its Affiliates other than as a result of monetary damages; it being understood that by assuming the defense of a Third Party Claim, the Indemnifying Party shall conclusively acknowledge that it has an indemnity obligation with respect to such Third Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense defense, with counsel reasonably satisfactory to the Indemnified Party at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them, or (ii) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, as provided in the first sentence of Section 8.4(c). The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; providedClaim on a basis that would result in (i) the imposition of a consent order, however, injunction or decree that no such prior written consent would restrict the future activity or conduct of the Indemnified Party shall or any of its Affiliates, (ii) a finding or admission of a violation of a Legal Requirement or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (iii) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates, or (iv) any monetary liability of the Indemnified Party that will not be required to any proposed settlement that involves only the payment of money promptly paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, (ii) is not entitled to defend the Third Party Claim as a result of the Indemnified Party’s election to defend the Third Party Claim as provided in Section 8.4(a), or (iii) after assuming the defense of a Third Party Claim, fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim. The Indemnified Party shall not settle a Third-Third Party Claim without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Third Party Claim, including by providing access to each other’s relevant business records and other documents, and employees; it being understood that the costs and expenses of the Indemnified Party relating thereto shall be Losses.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Lawapplicable Legal Requirements), and to cause all communications among employees, counsel and others representing any party to a Third-Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) Party may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (other than those relating to Taxes, which are the subject of Section 11.3) (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days Business Days following such Indemnified Party’s receipt of a Third-Party Claim, notify the party or parties from whom indemnification is sought (collectively, the “Indemnifying Party Party”) in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided. However, however, that the failure timely to give a Claim Notice shall prompt notice will not affect the rights or obligations of an Indemnified the Indemnifying Party hereunder except and only to the extent that that, as a result of such failure has a material prejudicial effect on the defenses or other rights available to failure, the Indemnifying Party with respect was prejudiced by such failure. Subject to such Third-Party Claim. The the consent rights of any R&W Insurer or other limitations in the R&W Insurance Policy, the Indemnifying Party shall have thirty fifteen (3015) days Business Days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding proceedings in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to will assume the defense of the Indemnified Party against such Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend will assume the defense of the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to reasonably participate in any such defense and to employ a single separate counsel of its choosing. The ; provided, however, that the Indemnifying Party shall be liable for the reasonable fees, costs and expenses of the counsel employed by the Indemnified Party shall participate in any such defense at its expense unless if the joint representation of the Indemnifying Party and the Indemnified Party are both named parties by a single law firm with respect to the proceedings such Third-Party Claim involved conflicts of interest and the Indemnified Party shall have reasonably concludeddetermines, based on the written advice of outside counsel, that joint representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between theminappropriate. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no Claim if such prior settlement: (i) does not include an unconditional written consent release by the claimant or plaintiff of the Indemnified Party shall be required to from all Liability in respect of such Third-Party Claim; or (ii) would result in: (A) the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any proposed settlement that involves only of its Affiliates; or (B) a finding or admission of a violation of Law, wrongdoing or violation of the payment rights of money any Person by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim Indemnified Party or bringing such action any of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityits Affiliates.
(c) If the Indemnifying Party elects not to, or is deemed to elect not to, defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire so intention to so defend or otherwiseassume the defense, the Indemnified Party shall have the right right, but not the obligation obligation, to assume its own defense; defense (and the Indemnifying Party shall be liable for the reasonable documented fees and expenses of counsel incurred by the Indemnified Party in defending such Third-Party Claim, but not in duplication of any such amounts claimed by such Indemnified Party as Losses in connection therewith), it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party Party: (i) shall not settle a diligently defend such Third-Party Claim Claim; and (ii) may not enter into a settlement thereof without the consent obtaining approval of the Indemnifying Party and/or its respective insurer(which approval shall not be unreasonably withheld, delayed or conditioned) unless the Indemnified Party will not be seeking indemnification from the Indemnifying Party for any amounts paid pursuant to such settlement thereof or for any other consequences of such Third-Party Claim.
(d) The Subject to the limitations set forth in Section 12.6(e), the Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing reasonable access to each other’s relevant business records and other documents, documents and employees.
(e) The Indemnified Party and the Indemnifying Party shall use commercially reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), ) and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-work product privilegesprivileges or protections. For the avoidance of doubt, nothing in this Section 12.6 shall be construed as a waiver by an Indemnified Party or an Indemnifying Party of any privilege, including any privilege associated with separate counsel as described herein.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that Except as otherwise provided in Section 6.5, if any written claim or demand (or written threat of a claim or demand), or notice of a Tax audit or proceeding (each, a “Claim”) for which a Party may be required to pay an indemnifying party indemnity hereunder (such Party, an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Person that may be entitled to indemnification hereunder (an “Indemnified Party Party”) by a third party (a “Third-Party Claim”)party, such Indemnified Party shall promptlyas promptly as possible, but in no event more than ten (10) days 30 Business Days following such Indemnified Party’s receipt of a Third-Party such Claim, notify the Indemnifying Party in writing of such Third-Party Claim, Claim and the amount or the estimated amount of damages sought thereunder thereof to the extent then ascertainable feasible (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to ) (the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect provide notice as provided herein will relieve the rights Indemnifying Party of an Indemnified Party its obligations hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to prejudices the Indemnifying Party with respect to such Third-Party Claim. hereunder.
(b) The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after 30 Business Days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party:
(i) whether or not the Indemnifying Party that disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such Claim and
(ii) whether or not it desires to assume the defense of will defend the Indemnified Party against such Third-Claim. In case any such Claim shall be brought against any Indemnified Party Claim.
(b) In and it shall notify the Indemnifying Party of the commencement thereof, and, except as hereinafter provided, in the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to will defend the Indemnified Party against a Third-Party such Claim, the Indemnifying Party shall have be entitled to participate therein and, to the right extent that it shall wish, to defend assume the defense thereof, with counsel selected by the Indemnifying Party and the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses of other counsel or any other reasonable expenses subsequently incurred by appropriate proceedings the Indemnified Party in connection with the defense thereof. Subject to the Indemnified Party’s compliance with the notice requirements under this Section 8.4, the Indemnifying Party shall be liable for the reasonable fees and shall have expenses of counsel employed by the sole power to direct and control such defense at its expense. Once Indemnified Party for any period during which the Indemnifying Party has duly not assumed the defense thereof.
(c) The Indemnified Party shall cooperate fully with the Indemnifying Party and its counsel in the defense against any such asserted liability, including promptly forwarding to the Indemnifying Party a copy of all written communications received by the Indemnified Party with respect to a Third-Party Claim, the . The Indemnified Party shall have the right, but not the obligation, right to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its own expense unless in the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice defense of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themsuch asserted liability. The Indemnifying Party shall not, not consent to the entry of any judgment or enter into any settlement without the prior written consent of the Indemnified Party, settlewhich consent shall not be unreasonably withheld, compromise conditioned or offer to settle or compromise any Third-Party Claimdelayed; provided, however, that no such prior written consent of the Indemnified Party shall be required to consent to any proposed judgment or settlement that involves only the payment of money by the Indemnifying Party, includes if:
(i) such judgment or settlement does not include as an unconditional term thereof the granting giving by the person asserting such claim each claimant or bringing such action plaintiff to each Indemnified Party of an unconditional and complete release from all liability in respect to all such Claim,
(ii) such judgment or settlement would result in the finding or admission of any violation of Law, or
(iii) as a result of such consent or settlement, injunctive or other equitable relief would be imposed against the Indemnified Parties Party or such judgment or settlement could interfere with or adversely affect the business, operations or assets of the Indemnified Party or any of its Affiliates. Notwithstanding the foregoing, with respect to such claim and Taxes, the consent of Purchasers shall not be required if the proposed settlement does not include increase Taxes of Purchasers for any admission of culpabilityperiod after the Closing Date.
(cd) Notwithstanding the foregoing,
(i) The Indemnifying Party shall not be entitled to assume the defense of (and shall be liable for the fees and expenses of counsel incurred by the Indemnified Party in defending) a third party Claim that seeks an Order, injunction or other equitable relief or relief for other than money damages (or that the Indemnified Party without also seeking money damages or that the Indemnified Party reasonably determines, after conferring with its outside counsel, that the Claim seeking relief for other than money damages cannot be separated from any related Claim for money damages), in any such cases in respect of which the interests of the Indemnifying Party are different or in conflict with those of the Indemnified Party. If such equitable relief or other relief portion of the third-party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages, as contemplated in respect of a Claim for money damages by this Section 8.4.
(ii) If the Indemnifying Party elects does not assume the defense or ceases to defend conduct the Indemnified Party against defense of a Third-Party third party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defensemay defend against such Claim; it being understood provided, that the Indemnified Party shall not consent or settle (either administratively or after the commencement of litigation) any Claim without the prior written consent of the Indemnifying Party’s right to indemnification for a Third-Party Claim , which consent shall not be adversely affected by assuming unreasonably withheld, conditioned or delayed (provided that the Indemnifying Party may retain separate co-counsel at its sole cost and expenses and may participate in the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurer).
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Samples: Contribution and Exchange Agreement (Sports Entertainment Enterprises Inc)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (other than a claim by a Taxing authority for Taxes) (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten thirty (1030) days following such Indemnified Party’s receipt of a Third-Third- Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial an adverse effect on the resolution of the Third-Party Claim or on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim. Notwithstanding anything to the contrary contained herein, to the extent that Buyer reasonably expects that the Losses resulting from a Third-Party Claim would not, when aggregated with all other Losses for which Seller has previously indemnified Buyer Indemnified Parties pursuant to this Agreement or would reasonably be expected to indemnify Buyer Indemnified Parties in the future (based on information available at such time), exceed the Indemnity Threshold, Buyer shall have the right to defend such Third-Party Claim and shall have the sole power to direct and control such defense.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expensedefense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosingdefense. The If the Indemnified Party shall participate in any such defense defense, it shall participate at its sole cost and expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, concluded that representation of both parties by the same counsel would be inappropriate inappropriate, due to actual or potential differing material interests between them. The Indemnifying Party shall nota non-waivable conflict, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.or
Appears in 1 contract
Samples: Securities Purchase Agreement
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”"INDEMNIFYING PARTY") may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article XSection 5.6), or Environmental Damages (which are the subject of Section 7.3), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”"THIRD PARTY CLAIM"), such Indemnified Party shall promptly, but in no event more than ten (10) days Business Days following such Indemnified Party’s 's receipt of a Third-Third Party Claim, notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”"CLAIM NOTICE"); providedPROVIDED, howeverHOWEVER, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party shall have thirty (30) 30 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”"NOTICE PERIOD") to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurer.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Cytec Industries Inc/De/)
Third-Party Claim Indemnification Procedures. Other than in respect of Tax matters, which shall be governed by Article VII:
(a) In the event that any written claim or demand for which an indemnifying party hereunder (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article XVII), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten thirty (1030) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim)ascertainable, any other remedy sought thereunder, any relevant time constraints relating thereto andthereto, a reasonably detailed explanation of the events giving rise to the extent practicable, such Third-Party Claim and any other material details pertaining thereto (a “Claim Notice”); provided, however, provided that the failure to timely to give a Claim Notice shall only affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party ClaimClaim or the indemnification obligations are materially increased as a result of such failure. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify Thereafter, the Indemnified Party that it desires shall deliver to assume the defense Indemnifying Party, promptly following the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party against such relating to the Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires elects to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense; provided that if any Seller defends against, negotiates, settles or otherwise handles such Third Party Claim in accordance with this Section 9.5, the attorney’s fees and expenses incurred and paid by any Seller in connection therewith shall reduce (by the amount thereof) the amount recoverable under this Article IX by the Buyer Indemnified Parties and under the Escrow Fund; provided further that such reduction shall not exceed $2,500,000 in the aggregate. If a Seller incurs any such attorney’s fees or expenses in accordance with the preceding sentence, at the request of CBH, each of Buyer and CBH shall instruct the Escrow Agent to pay from the Escrow Fund an amount equal to such attorney’s fees or expenses to the applicable Seller, subject to the $2,500,000 cap described in the immediately preceding sentence. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claimmade such election, the Indemnified Party shall have the right, but not the obligation, right to participate in any such defense and to employ separate counsel of its choosingchoosing at such Indemnified Party’s expense. The Indemnified Party shall participate in any such defense at its expense unless If the Indemnifying Party and assumes the Indemnified defense of a Third-Party are both named parties to Claim, the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; providedClaim if the terms of such settlement does not contain a release of the Indemnified Parties or would result in (i) the imposition of a consent order, howeverinjunction or decree that would restrict the future activity or conduct of the Indemnified Party, that no such prior written consent (ii) a finding or admission of a violation of Law by the Indemnified Party, or (iii) except to the extent within the Deductible Amount, any monetary liability of the Indemnified Party shall that will not be required to any proposed settlement that involves only the payment of money paid or reimbursed by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim . Whether or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend assumes the Indemnified Party against defense of a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of admit any liability with respect to, settle, compromise or discharge, such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of Indemnifying Party’s prior written consent. If the Indemnifying Party and/or assumes the defense of a Third-Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third-Party Claim that the Indemnifying Party may reasonably recommend and that by its respective insurerterms (i) obligates the Indemnifying Party to pay (including any such payment which may deemed to be made as a result of the release of funds from the Escrow Fund) the full amount of Losses in connection with such Third-Party Claim (other than with respect to any Losses (or portion thereof) that the Indemnifying Party is not required to pay as a result of such Losses being (or portion thereof) within the Deductible Amount), (ii) releases the Indemnified Party in connection with such Third-Party Claim and (iii) otherwise complies with the provisions of this Section 9.5(b), including the prior two sentences hereof.
(dc) The Indemnified Party and the Indemnifying Party shall reasonably cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing reasonable access to each other’s relevant business records Books and other documentsRecords, and employees.
. Such cooperation shall include the retention and (eupon the Indemnifying Party’s request) the provision to the Indemnifying Party of Books and Records and information that are reasonably relevant to such Third-Party Claim, and making employees and Representatives available on a mutually convenient basis during normal business hours to provide additional information and explanation of any material provided hereunder. The Indemnified Party and the Indemnifying Party shall use commercially reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Samples: Transaction Agreement (Connors Bros. Holdings, L.P.)
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party hereunder (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article XVII), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days promptly following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, describe the amount breach or inaccuracy and other material facts and circumstances upon which such claim is based and the estimated amount of damages sought thereunder Losses involved, in each case, in reasonable detail in light of the facts then known to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Indemnified Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, provided that the failure to timely to give give, or defect in the information contained in, a Claim Notice shall affect not relieve the rights Indemnifying Party of an Indemnified Party hereunder only its obligations hereunder, except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or been actually and materially prejudiced by such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify failure. Thereafter, the Indemnified Party that it desires shall deliver to assume the defense Indemnifying Party, promptly following the Indemnified Party’s receipt thereof, copies of all written notices and documents (including court papers) received by the Indemnified Party against from such third party relating to the Third-Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires elects to defend the Indemnified Party against a Third-Party ClaimClaim (subject to the limitations below), the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expenseexpense with the counsel of its choice reasonably satisfactory to the Indemnified Party so long as (i) the Indemnifying Party gives written notice that they or it will defend the Third-Party Claim to the Indemnified Party within twenty (20) days after the Indemnified Party has given notice of the Third-Party Claim under Section 9.7(a) stating that the Indemnifying Party will indemnify, defend and hold harmless the Indemnified Party from and against Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim, subject to the limitations of this Article IX, (ii) the Third-Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party, (iii) the Indemnified Party has not been advised by counsel that an actual or potential conflict exists between the Indemnified Party and the Indemnifying Party in connection with the defense of the Third-Party Claim, (iv) the Third-Party Claim does not relate to or otherwise arise in connection with any criminal or regulatory enforcement Action and (v) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently. Once the Indemnifying Party has duly assumed made such election and the defense of a Third-Party Claimconditions in the preceding sentence have been met, the Indemnified Party shall have the right, but not the obligation, right to participate in (but not control) any such defense and to employ separate counsel of its choosing. The choosing at such Indemnified Party shall participate in any such defense at its expense unless Party’s expense; provided, that the Indemnifying Party will pay the fees and expenses of separate counsel retained by the Indemnified Party that are both named parties incurred prior to the proceedings and Indemnifying Party’s assumption of control of the Indemnified defense of the Third-Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themClaim. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, consent to the entry of any judgment or enter into any compromise or offer settlement with respect to settle the Third-Party Claim unless the terms of such settlement or compromise judgment (i) does not result in the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party, (ii) involves no finding or admission of a violation of Law or the rights of any Person by the Indemnified Party and no effect on any other claims that may be made against the Indemnified Party, (iii) obligates the Indemnifying Party to pay the full amount of Losses, subject to the limitations of this Article IX, in connection with such Third-Party Claim and provides for the payment of such Losses as sole relief of the claimant and (iv) releases the Indemnified Party in connection with such Third-Party Claim; provided, however, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim . Whether or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.
(c) If the Indemnifying Party elects not to defend assumes the Indemnified Party against defense of a Third-Party Claim, whether by not giving the Indemnified Indemnifying Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall will not be adversely affected bound by assuming the defense any admission of Liability with respect to, or settlement, compromise or discharge of, such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the Indemnifying Party’s prior written consent (which shall not be unreasonably conditioned, withheld or delayed). In the event that the Indemnified Party conducts the defense of the Third-Party Claim pursuant to this Section 9.7(b), the Indemnifying Party and/or its respective insurerwill advance the Indemnified Party promptly and periodically for the costs of defending against the Third-Party Claim (including reasonable attorneys’ fees and expenses), subject to the limitation of this Article IX.
(dc) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access reasonable access, subject to reasonable privilege or confidentiality concerns, to each other’s relevant business records Books and other documentsRecords, and employees.
. Such cooperation shall include the retention and (eupon the Indemnifying Party’s request but subject to reasonable privilege or confidentiality concerns) the provision to the Indemnifying Party of Books and Records and information that are reasonably relevant to such Third-Party Claim, and making employees and Representatives available on a mutually convenient basis during normal business hours to provide additional information and explanation of any material provided hereunder at the cost of the Indemnifying Party. The Indemnified Party and the Indemnifying Party shall use reasonable best commercial efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privilegesprivileges at the cost of the Indemnifying Party.
(d) This Section 9.7 shall not apply with respect to any Tax matter and the provisions of Section 7.3 shall apply to any Tax matter instead.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that any written claim or demand for which an indemnifying party (an “"Indemnifying Party”") may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-"Third Party Claim”"), such Indemnified Party shall promptly, but in no 131 event more than ten (10) thirty days following such Indemnified Party’s 's receipt of a Third-Third Party Claim, notify the Indemnifying Party in writing of such Third-Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “"Claim Notice”"); provided, however, that the failure timely to give a Claim Notice shall not affect the rights of an Indemnified Party hereunder only except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Third Party Claim. The Indemnifying Party shall have thirty (30) 15 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “"Notice Period”") to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Third Party Claim; provided, however, that the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third Party Claim and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (ii) the Third Party Claim seeks injunctive or equitable relief against the Indemnified Party, (iii) the Indemnifying Party has failed to defend or is failing to defend in good faith the Third Party Claim, (iv) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (v) in the case of a Buyer Indemnified Party, it is reasonably likely that the Losses arising from such Third Party Claim will exceed the amount such Buyer Indemnified Party will be entitled to recover as a result of the limitations set forth in Section 7.2(b); provided, further, that prior to assuming control of such defense, the Indemnifying Party must acknowledge that it would have an indemnity obligation for any Losses resulting from such Third Party Claim.
(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Third Party ClaimClaim and subject to Section 7.4(a), the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Subject to Section 7.4(a), the Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between themexpense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Third Party Claim; provided, however, that no such prior written consent of Claim unless (i) the Indemnifying Party shall have agreed to indemnify and hold the Indemnified Party harmless from and against any and all Losses caused by or arising out of any such settlement or compromise, (ii) such settlement or compromise shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes include as an unconditional term thereof the granting giving by the person asserting such claim or bringing such action claimant of an unconditional a release of the Indemnified Party, reasonably satisfactory to the Indemnified Party, from liability to all Indemnified Parties Liability with respect to such claim Third Party Claim and does (iii) such settlement or compromise would not include result in (A) the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any of its Affiliates, (B) a finding or admission of culpabilitya violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (C) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates, or (D) any monetary liability of the Indemnified Party that will not be promptly paid or reimbursed by the Indemnifying Party.
(c) If the Indemnifying Party (i) is not entitled to defend a Third Party Claim, (ii) elects not to defend the Indemnified Party against a Third-Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwiseotherwise or (iii) after assuming the defense of a Third Party Claim, fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s 's right to indemnification for a Third-Third Party Claim shall not be adversely affected by assuming the defense of such Third-Third Party Claim. The Indemnified Party shall not settle a Third-Third Party Claim for which the Indemnifying Party shall have monetary liability hereunder without the consent of the Indemnifying Party and/or its respective insurerParty, which consent shall not be unreasonably withheld.
(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Third-Party Claim Indemnification Procedures. (a) In the event that If any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of Article X), is asserted against or sought to be collected from any Indemnified Party by a third party party, including a Government Entity (a “Third-Party Claim”), such Indemnified Party shall promptly, promptly (but in no event more later than ten (10three Business Days after receipt thereof) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable Claim (which estimate shall not be conclusive of the final amount of such a “Third-Party Claim)Claim Notice,” collectively with Direct Claim Notices, any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim NoticeNotices”); provided, however, that the failure timely to give a Third-Party Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim or the quantum of such Third-Party Claim (including all interest and other penalties which may accrue as a result of such delay). A Third-Party Claim Notice shall contain a brief summary of the facts underlying or relating to such claim to the extent then known by the Indemnified Party and a copy of any correspondence or notice received from the relevant third party and a statement that the Indemnified Party seeks indemnification for Losses relating to such Third-Party Claim. .
(b) The Indemnifying Party shall have thirty (30) 30 days (or or, assuming no delay in the delivery of the Third-Party Claim Notice by the Indemnified Party in breach of this Agreement, such lesser number of days set forth in the Third-Party Claim Notice as may be required by any Government Entity, court proceeding in the event of a litigated matteror regulatory inquiry or investigation) after receipt of the Third-Party Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of defend the Indemnified Party against such Third-Party Claim unless the Third Party Claim involves criminal liability; it being understood that, by assuming the defense of a Third-Party Claim, the Indemnifying Party shall acknowledge its obligation to indemnify the Indemnified Party with respect to all Losses imposed on, sustained, incurred or suffered by, or asserted against the Indemnified Party in respect of such Third-Party Claim (subject only to the limitations contained in this Article VIII and any amounts actually recovered as contemplated by Section 8.8(a)). If an Indemnifying Party is determined to have ultimately had an obligation to defend a Third-Party Claim, then all Losses sustained, incurred or suffered by the Indemnified Party in defending such Third-Party Claim prior to the assumption of such defense by the Indemnifying Party shall be reimbursed by the Indemnifying Party, subject to Section 8.4(a). If an Indemnifying Party is determined to not have ultimately had an obligation to defend a Third-Party Claim, then all Losses sustained, incurred or suffered by the Indemnifying Party in connection with such defense after its assumption of such defense shall be reimbursed by the Indemnified Party, subject to the limitations contained in this Agreement.
(bc) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have proceedings, with counsel selected by the sole power Indemnifying Party that is reasonably satisfactory to direct and control such defense the Indemnified Party, at its expensethe expense of the Indemnifying Party. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to reasonably participate in any such defense defense; provided, however, that such participation does not materially interfere with or compromise such defense, including the opportunity to reasonably participate in any discussions or correspondence with any Government Entity, and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its own expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and counsel to the Indemnified Party shall have reasonably concluded, based on the written advice of legal counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them. The them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party shall notin respect thereof, without the prior written consent of or (ii) the Indemnified Party, settle, compromise or offer to settle or compromise any Party assumes the defense of a Third-Party Claim; provided, however, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by Claim after the Indemnifying PartyParty has failed to diligently pursue a Third-Party Claim it has assumed, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpabilityprovided in Section 8.4(d).
(cd) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, (ii) is not entitled to defend the Third-Party Claim as provided in Section 8.4(c) or (iii) after assuming the defense of a Third-Party Claim, fails to take reasonable steps necessary to defend diligently such Third-Party Claim within 10 Business Days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right right, but not the obligation obligation, to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim.
(e) Whether or not the Indemnifying Party shall have assumed defense of a Third-Party Claim, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, consent to the entry of judgment, admit any liability with respect to, settle, compromise, discharge or offer to settle, compromise or discharge any Third-Party Claim on a basis that would result in (i) the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any of its Affiliates, (ii) a finding or admission of a violation of Law, of a violation of the rights of any Person by the Indemnified Party or any of its Affiliates or that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates, or (iii) any monetary liability of the Indemnified Party that will not be promptly paid or reimbursed by the Indemnifying Party or anything less than a complete release being provided to the Indemnified Party and its Affiliates. The Indemnified Party shall not settle a Third-agrees to take all steps necessary to implement the settlement of any Third Party Claim without the consent of the Indemnifying Party and/or its respective insurerto which it has consented in accordance with this Section 8.4(e).
(df) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access during regular business hours to each other’s relevant business books, records and other documents, and employees; provided, however, that such cooperation shall not unreasonably interfere with the business or operations of the providing party to a greater extent than as resulting from such litigation. All reasonable Losses sustained, incurred or suffered by the Indemnified Party in connection with responding to, complying with or satisfying the Indemnifying Party’s requests for cooperation shall be promptly reimbursed by the Indemnifying Party; provided, however, that the Indemnified Party shall use all reasonable measures to minimize such Losses. If the Indemnifying Party disputes the amount of, or otherwise refuses or fails to reimburse, any such Losses that the Indemnified Party has incurred and for which the Indemnified Party has sought reimbursement from the Indemnifying Party, the Indemnified Party shall continue providing reasonable cooperation with respect to the defense of the relevant Third-Party Claim until such dispute has become the subject of a Final Determination after which point the Indemnified Party and the Indemnifying Party may resolve the dispute regarding any reimbursable Losses that have not been paid by the Indemnifying Party in accordance with the procedures set forth in Section 8.5.
(eg) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (J2 Global Communications Inc)
