Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions: (a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party. (b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages. (c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c). (d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 4 contracts
Samples: Master Services Agreement (Transocean Partners LLC), Master Services Agreement (Transocean Partners LLC), Master Services Agreement (Transocean Partners LLC)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 8.1(b) for each Party in its capacity as a Service Provider and Provider’s the indemnification obligation pursuant to Section 5.38.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 fifteen (15) calendar days after following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim Notice at least five (the “Election Period”)5) days before that date, the Indemnifying Party shall notify the Indemnified Party (A) whether that the Indemnifying Party disputes will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its potential liability to own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party under this Article 5 with respect fully apprised as to such Claim the status of the defense, and (Bii) whether the Indemnifying Party desires, at its sole cost and expense, to defend shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such Claimclaim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not notify the Indemnified Party deliver a Notice of Assumption relating to any claim within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claimrequired notice period, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at defend the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of claim in such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed)manner as it may deem appropriate. The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by shall promptly reimburse the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in this Section 5.4.1 to the contrary, connection therewith to the extent (1) it is a claim for which the Indemnifying Party has delivered a notice is obligated to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party indemnify under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesAgreement.
Appears in 4 contracts
Samples: Transition Services Agreement, Transition Services Agreement (Halyard Health, Inc.), Transition Services Agreement (Halyard Health, Inc.)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “i) Without limiting the Indemnified Party”) ’s obligations under Section 7.2(a), if the Claim for which indemnification is being sought arises from any Action brought by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice Person (a “Claim NoticeThird-Party Claim”) describingagainst the Indemnified Party, then the Claim Notice therefor shall include copies of all material written evidence thereof and all filings that have been made by such third Person in reasonable detailconnection therewith and served on the Indemnified Party, and shall indicate the nature estimated amount, if reasonably practicable, of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify Damages that have been or may be incurred by the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(bii) If Subject to the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense conditions of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and 7.2(b)(ii), the Indemnifying Party shall have the right to defendcontrol the conduct of the defense of any Third Party Claim, at its sole cost the Indemnifying Party’s expense and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently using counsel selected by the Indemnifying Party to which the Indemnified Party has no reasonable objection. Notwithstanding the foregoing, the Indemnifying Party shall not be permitted to control the conduct of the defense of any Third Party Claim unless (A) within 30 days (or such longer period of time as the Indemnified Party and the Indemnifying Party may mutually agree in writing) after the Indemnified Party’s delivery of a final conclusion written notice of a Third-Party Claim pursuant to Section 7.2(b)(i), the Indemnifying Party gives written notice to the Indemnified Party that it intends to assume and conduct the defense and settlement of such Third-Party Claim; (B) the Indemnifying Party acknowledges in writing to the Indemnified Party (to the extent capable of being acknowledged based on the information provided) that there exists an indemnification obligation by the Indemnifying Party relating to such Third-Party Claim; (C) the amount reasonably claimed in such Third-Party Claim, together with any amounts that are reasonably necessary to satisfy any unsatisfied Claim made by the Indemnified Party is less than or settled at equal to the discretion then applicable limitations of liability for indemnification with respect to such Third-Party Claim as provided herein; (D) such Third-Party Claim does not involve criminal or regulatory enforcement action or seek an injunction or other equitable relief against the Indemnified Party or any of its affiliates; (E) no legal conflict exists between the Indemnified Party and the Indemnifying Party in accordance connection with this Section 5.4.1(b). The Indemnified the defense of such Third-Party mayClaim; (F) the conduct of the defense of, at its own cost and expense, participate in, but not control, any defense or settlement of or an adverse resolution with respect to such Third-Party Claim would not reasonably be expected to be adverse in any Claim controlled by the Indemnifying Party pursuant material respect to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party’s or any of its affiliates’ reputation, agree to any compromise business or settlement which does not include an unconditional release of operations; and (G) the Indemnified Party from all Damagesactively and diligently conducts the defense of such Third Party Claim. The Indemnifying Party will lose any previously acquired right to control the defense of any Third-Party Claim if for any reason any of the foregoing conditions set forth in clause (B) through clause (G) of the preceding sentence are no longer satisfied, and the Indemnified Party will have the right to take over the control of such defense.
(ciii) If the Indemnifying Party fails is exercising a right to notify control the Indemnified Party within the Election Period that the Indemnifying Party elects to assume conduct of the defense of the Claim or if the Indemnifying a Third-Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b)Claim, then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, participate in the defense of such Third-Party Claim at the sole cost its own expense and expense of with its own counsel and the Indemnifying Party (if shall keep the Indemnified Party is entitled reasonably informed as to indemnification under this Agreement), the progress of such Third-Party Claim. The Indemnifying Party may not consent to the entry of any judgment or enter into any compromise or settlement with respect to any Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by without the prior written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed) unless the Indemnifying Party is exercising a final conclusion right to control the conduct of the defense of a Third-Party Claim and the terms, conditions and existence of such judgment, compromise or settled at settlement are confidential and such judgment, compromise or settlement (A) provides for the discretion payment by the Indemnifying Party of money as sole relief for the claimant; (B) results in a dismissal with prejudice of such Third-Party Claim, including a full and general release of the Indemnified Party and its Affiliates from all liabilities arising or relating to, or in connection with, the Third-Party Claim; and (C) includes an affirmative statement that there is no finding or admission of any violation of any law or the rights of any person or entity, and has no adverse effect on any other claims that may be made against the Indemnified Party. The Indemnified Party shall Parties will have full control of such defense and proceedings, including no liability with respect to any compromise or settlement of, or the entry of any judgment arising from, any Third-Party Claim effected without the Indemnified Party’s consent.
(iv) If the Indemnifying Party elects not to control or is not entitled to control the conduct of the defense of a Third-Party Claim, then the Indemnified Party shall have the right to control the conduct of the defense of the Third Party Claim, at the Indemnifying Party’s expense and using counsel selected by the Indemnified Party to which the Indemnifying Party has no reasonable objection. In such defense and proceedingsevent, provided that the Indemnifying Party shall not be liable for any have the right to participate in the defense of such compromise or settlement unless Third-Party Claim at its own expense and with its own counsel, and the Indemnified Party shall keep the Indemnifying Party reasonably informed as to the progress of such compromise or settlement Third-Party Claim. If the Indemnified Party is made exercising a right to control the conduct of the defense of a Third-Party Claim, then except with the Indemnifying Party’s express written consent of the Indemnifying Party (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 may not consent to the contrary, entry of any judgment or enter into any compromise or settlement with respect to any Third Party Claim without the extent (1) prior written consent of the Indemnifying Party has delivered a notice (not to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Partybe unreasonably withheld, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) conditioned or the Indemnified Party’s defense pursuant to Section 5.4.1(cdelayed), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 3 contracts
Samples: Purchase Agreement (Mesoblast LTD), Purchase Agreement (Mesoblast LTD), Purchase Agreement (Osiris Therapeutics, Inc.)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 8.1(A) for each Party as a Service Receiver and Provider’s the indemnification obligation pursuant to Section 5.38.1(B) for each party as a Service Provider, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 thirty (30) calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 VIII with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b2) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b8.1(C)(i)(2) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if it is determined that the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b8.1(C)(i)(2). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b8.1(C)(i)(2). Notwithstanding anything in this Section 5.4.1(b8.1(C)(i)(2) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c3) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b8.1(C)(i)(2), then this Section 5.4.1(c8.1(C)(i)(3) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if it is determined that the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c8.1(C)(i)(3).
(d4) Notwithstanding anything in this Section 5.4.1 8.1(C)(i) to the contrary, to the extent (1A) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 VIII and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b8.1(C)(i)(2) or the Indemnified Party’s defense pursuant to Section 5.4.1(c8.1(C)(i)(3), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 2 contracts
Samples: Transition Services Agreement (Paragon Offshore PLC), Transition Services Agreement (Paragon Offshore Ltd.)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3Indemnified Party shall notify the Indemnifying Party, in each casewriting, with respect to Damages claimed or asserted against as soon as is reasonably practicable after being informed, in writing, that facts exist which may result in a person claiming indemnification under this Agreement claim originating from a Person other than the Indemnified Party (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third Party Claim”), are subject the estimated quantum of the claim, if known, and in respect of which a right of indemnification given pursuant to this Section 5 may apply. The omission so to notify the following terms and conditions:
(a) The Indemnified Indemnifying Party shall, with reasonable promptness after shall not relieve the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim any duty to indemnify and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served hold harmless which otherwise might exist with respect to such cause unless (and only to that extent) the omission to notify materially prejudices the ability of the Indemnifying Party to exercise its right to defend as provided in this Article 5. The Indemnifying Party shall have the right to elect, by written notice delivered to the Indemnified Party within ten (10) days of receipt by the Indemnifying Party of the notice from the Indemnified Party in respect of the Third Party Claim. Within 30 calendar days after receipt , at the sole expense of the Indemnifying Party, to participate in or assume control of the negotiation, settlement or defence of the Third Party Claim, provided that:
(i) such will be done at all times in a diligent and bona fide matter;
(ii) such right shall be subject to the rights of any Claim Notice insurer or other third party who has potential liability in respect of such Third Party Claim;
(iii) the “Election Period”)Indemnifying Party acknowledges, in writing, its obligation to indemnify the Indemnified Party in accordance with the terms contained in this Agreement in respect of that Third Party Claim; and
(iv) the Indemnifying Party shall notify pay all reasonable out-of-pocket expenses incurred by the Indemnified Party (A) whether as a result of such participation or assumption. If the Indemnifying Party disputes its potential liability elects to assume such control, the Indemnified Party under this Article 5 shall cooperate with respect to such Claim and (B) whether the Indemnifying Party desiresand its counsel and shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at its sole cost and own expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify so elect or, having elected to assume such control, thereafter fails to proceed with the Indemnified settlement or defence of any such Third Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate be entitled to protect its interests or those of the Indemnifying Party.
(b) If assume such control. In such case, the Indemnifying Party notifies shall cooperate where necessary and at its own expense with the Indemnified Party within the Election Period that the Indemnifying and its counsel in connection with such Third Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) Claim and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently bound by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently results obtained by the Indemnified Party with respect to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified such Third Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c)Claim.
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 2 contracts
Samples: Share Purchase Agreement (Avino Silver & Gold Mines LTD), Share Purchase Agreement
Third Party Claim. The Company Group memberIf Parent’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed Indemnity Claim involves any Action brought or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) made by a any third party (that third-party claim or assertion, a “Third Party Claim”), are subject then Clorox may elect (by written notice to Parent delivered within 30 days of notice by Parent to Clorox pursuant to Section 10.5(a)) to assume at its expense the following terms and conditions:
(a) The Indemnified defense of such Third Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, including discussions with relevant Governmental Authorities, using counsel reasonably acceptable to Parent. If Clorox does not so elect to assume such defense, then such Third Party Claim shall be defended by Parent in such manner as it reasonably deems appropriate (1) notify and the costs, fees and expenses of Parent for such defense shall constitute Damages in accordance with Section 10.4), including entering a reasonable settlement thereof in which event the settlement plus Parent’s costs, fees and expenses with respect thereto shall be the Damages in accordance with Section 10.4; provided that Parent shall not enter into any settlement of such Third Party from whom indemnification is sought (Claim without the “Indemnifying Party”) prior written consent of the existence of that Claim Clorox, which consent shall not be unreasonably withheld, unless Clorox and (B) transmit its Affiliates have no liability therefor, are not required to the Indemnifying Party a notice (a “Claim Notice”) describingadmit any liability and will not be bound by any restrictions or limitations on its or their conduct thereafter, and no negative precedent for future Claims, Actions or litigation against Clorox and its Affiliates will be established, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party which case no consent shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claimbe required. If the Indemnifying Third Party does Claim has been assumed by Clorox, Clorox shall cooperate with Parent in connection with such defense and shall permit Parent to participate therein; provided that Clorox shall not notify be liable to Parent under the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, provisions hereof for any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer legal or other pleadings that expenses incurred by Parent in connection with Parent’s participation in the Indemnified defense of such Third Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects Claim after Clorox has elected to assume the defense thereof so long as Clorox is diligently contesting such Third Party Claim in good faith, unless Parent is advised by outside counsel that an actual or potential conflict of interest exists between Parent and Clorox or that there are different or additional defenses available to Parent that are not available to Clorox, in which case Parent may engage separate counsel (the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) reasonable fees and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, disbursements of which proceedings shall be prosecuted diligently borne by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(bClorox). The Indemnified Party may, at its own cost and expense, participate in, but Clorox may not control, enter into any defense or settlement of any such Third Party Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express prior written consent of the Indemnified PartyParent, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party mayunless Parent and its Affiliates have no liability therefor, at its own cost are not required to admit any liability and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall will not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) bound by any restrictions or the Indemnified Party’s defense pursuant to Section 5.4.1(c)limitations on its or their conduct thereafter, and the Indemnified Party no negative precedent for future Claims, Actions or litigation against Parent and its Affiliates will be established, in which case no consent shall reimburse the Indemnifying Party in full for all of those costs and expensesbe required.
Appears in 2 contracts
Samples: Share Exchange Agreement (Clorox Co /De/), Share Exchange Agreement (Clorox Co /De/)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to If any Party (for purposes of this Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.314.3, in each casean "Indemnified Party") becomes aware of a fact, with respect to Damages claimed circumstance, claim, situation, demand or asserted against a person claiming indemnification other matter for which it or any other Indemnified Party has been indemnified under this Agreement (an “Article XIV and which has resulted or could result in a liability owed by the Indemnified Party”) Party to a third party or a claim otherwise advanced by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after against the Indemnified Party has (any such items being herein called a "Third Party Claim"), the Indemnified Party, shall give prompt written notice of a Claim, (1) notify the Third Party Claim to the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit obligated to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served provide indemnity with respect to such ClaimThird Party Claim (for purposes of this Section 14.3, the "Indemnifying Party"), requesting indemnification therefor, specifying the nature of and specific basis for the Third Party Claim and the amount or estimated amount thereof to the extent then feasible; provided, however, a failure to give such notice will not waive any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually materially prejudiced by such failure. Within The Indemnifying Party shall have the right to assume the defense or investigation of such Third Party Claim and to retain counsel and other experts to represent the Indemnified Party and shall pay the fees and disbursements of such counsel and other experts. If within 30 calendar days after receipt of any Claim Notice the request (the “Election Period”), or five days if litigation is pending) the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability fails to give notice to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such assumes the defense or investigation of the Third Party Claim, any Damages resulting from such Claim an Indemnified Party may retain counsel and other experts (whose fees and disbursements shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled Party) to indemnification under this Agreement), to file, during the Election Period, file any motion, answer or other pleadings that pleading and take such other action which the Indemnified Party shall reasonably deem deems necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If Party until the Indemnifying Party notifies date on which the Indemnified Party within the Election Period that receives such notice from the Indemnifying Party. If an Indemnifying Party elects to assume assumes the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) or investigation and the Indemnifying Party shall have the right to defend, at its sole cost retains such counsel and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not controlother experts, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defendretain its own counsel and other experts, but the fees and expenses of such counsel and other experts shall be at the sole cost and expense of the Indemnified Party unless (i) the Indemnifying Party (if and the Indemnified Party is entitled mutually agree to indemnification under this Agreement)the retention of such counsel and other experts or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would, in the opinion of counsel retained by the Indemnifying Party, be inappropriate due to actual or potential differing interests between them. If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim by all which the Indemnifying Party defends, or, if appropriate proceedingsand related to Third Party Claim in question, which proceedings shall in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any Person. No Third Party Claim may be prosecuted diligently settled by the Indemnified Party to a final conclusion or settled at without the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, which consent will not be unreasonably withheld. Unless the Indemnifying Party shall agrees in writing that the Damages to the Indemnified Party resulting from such settlement are fully covered by the indemnities provided herein and that such Damages are fully compensable in money, no Third Party Claim may be settled without the consent of the Indemnified Party, which consent will not be required unreasonably withheld. Except with respect to bear settlements entered without the costs and expenses Indemnified Party's consent pursuant to the immediately preceding sentence, to the extent it is determined that the Indemnified Party has no right under this Article XIV to be indemnified by the Indemnifying Party, shall promptly pay to the Indemnifying Party any amounts previously paid or advanced by the Indemnifying Party with respect to such matters pursuant to this Article XIV. After the delivery of notice of a Third Party Claim hereunder, at the reasonable request of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and Party the Indemnified Party shall reimburse grant the Indemnifying Party in and its representatives full for all and complete access to the books, records and properties of those costs the Indemnified Party to the extent reasonably related to the matters to which the notice relates. The Indemnifying Party will not disclose to any third person (except its representatives) any information obtained pursuant to the preceding sentence which is designated as confidential by the Indemnified Party and expenseswhich is not otherwise generally available to the public, except as may be required by applicable law. The Indemnifying Party shall request its representatives not to disclose any such information (except as may be required by applicable law). All such access shall be subject to the normal safety regulations of the Indemnified Party, and shall be granted under conditions which will not unreasonably interfere with the business and operations of the Indemnified Party.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Safety Kleen Corp/), Stock Purchase Agreement (Rollins Environmental Services Inc)
Third Party Claim. The Company Group member’s (1) Within 60 days after the Indemnified Party receives notice of a claim, assertion, legal action, arbitration, investigation, or other matter or proceeding brought by any Person that is not a Party or an Affiliate of a Party and that may result in a Loss for which indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification may be sought under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third-Party Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of shall deliver a Claim, (1) notify the Claim Notice regarding such Third-Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature Party. The failure of the Claim, and copies of any papers served with respect Indemnified Party to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), so notify the Indemnifying Party shall notify the Indemnified Party (A) whether not relieve the Indemnifying Party disputes its potential of liability under this Agreement except to the Indemnified extent that the defense of such Third-Party under this Article 5 with respect Claim is materially prejudiced by the failure to give such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claimnotice. If the Indemnifying Party does not notify or its counsel so requests, the Indemnified Party within the Election Period that shall furnish the Indemnifying Party disputes its potential liability with copies of all pleadings and other information with respect to such Third-Party Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at prior to the sole cost and expense of election by the Indemnifying Party (but only if to assume the Indemnified defense of such Third-Party is entitled to indemnification under this Agreement)Claim, to file, during the Election Period, file any motion, answer answer, or other pleadings pleading that the Indemnified Party it shall reasonably deem necessary or and appropriate to protect its interests or those of the Indemnifying Party and that is not prejudicial to the Indemnifying Party, all costs of which shall be included as Losses in respect of such claim for indemnification.
(b2) If At the election of the Indemnifying Party, which shall be made within 45 days after receipt of the Claim Notice, the Indemnified Party shall permit the Indemnifying Party notifies to assume control of the Indemnified defense of such Third-Party within Claim (to the Election Period extent only that such Third-Party Claim relates to a Loss for which the Indemnifying Party may be liable). If the Indemnifying Party elects to assume control of the defense of the Third-Party Claim, then (i) any expense incurred by the Indemnified Party thereafter for investigation or defense of the matter shall be borne by the Indemnified Party, and (ii) the Indemnified Party shall give all reasonable information and assistance, other than pecuniary, that the Indemnifying Party shall deem necessary and reasonably request to the proper defense of such Third-Party Claim. The Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in, but not control, the defense of the Third-Party Claim. If the Indemnifying Party elects to defend the Third-Party Claim under this Section 5.4.1(b14.5(b)(2), then the Indemnifying Party shall work diligently to defend or otherwise resolve the Third-Party Claim.
(3) If the Indemnifying Party does not elect to assume control of the defense of the Third-Party Claim within the 45-day period provided in Section 14.5(b)(2), the Indemnified Party will use its commercially reasonable efforts to defend, at the Indemnifying Party’s expense, any claim, assertion, legal action, or other matter to which such other Party’s indemnification under this Article XIV applies until the Indemnifying Party assumes such defense and, if settlement has been offered and the Indemnifying Party has not at such time admitted its obligation to defend and indemnify the Indemnified Party against such Third-Party Claim, the Indemnified Party shall apply (but not otherwise) send written notice to the Indemnifying Party of any proposed settlement and the Indemnifying Party shall have the right option for 10 days following receipt of such notice to defend, at (i) admit in writing its sole cost and expense (if obligation to indemnify the Indemnified Party from and against the liability and consent to such settlement, (ii) if liability is entitled to indemnification under this Agreement)so admitted, such Claim by all appropriate proceedingsreject, which proceedings shall be prosecuted diligently in its reasonable judgment, the proposed settlement, or (iii) deny liability. Any failure by the Indemnifying Party to a final conclusion or settled at respond to such notice shall be deemed to be an election under clause (iii) in the discretion of the immediately-preceding sentence.
(4) The Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may shall not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying , enter into any judgment, compromise, settlement, or discharge with respect to the Third-Party may, at its own cost and expense, participate in, but not control, any defense or settlement Claim without the prior written consent of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
unless such judgment, compromise, settlement, or discharge (dw) Notwithstanding anything in this Section 5.4.1 to provides for the contrary, to the extent (1) payment by the Indemnifying Party has delivered a notice to of money as the sole relief for the claimant, (x) involves no finding or admission of any violation of Law or the rights of any Indemnified Party, (y) does not encumber any of the assets of any Indemnified Party (including the Assets) or agree to any restriction or condition that the Indemnifying Party disputes its potential liability would apply to the or materially adversely affect any Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the conduct of any Indemnified Party’s defense pursuant to Section 5.4.1(c)business, and the (z) includes, as a condition of any entry of judgment, settlement, compromise, discharge, or other resolution, a complete and unconditional release of each Indemnified Party shall reimburse the Indemnifying from any and all liabilities in respect of such Third-Party in full for all of those costs and expensesClaim.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Earthstone Energy Inc), Purchase and Sale Agreement (Earthstone Energy Inc)
Third Party Claim. The Company In the event that the Buyer seeks indemnification for demand and/or claim and/or proceeding and/or action and/or other legal proceeding by third parties made against the Group member’s indemnification obligation pursuant and/or the Buyer (“Third Party Claim” and the “Defendant”, respectively), the Buyer shall provide the Sellers with written notice of such Third Party Claim, shortly after its receipt (provided that failure to Section 5.2 provide such notice shall not in any way relieve the Sellers of their indemnity obligations hereunder), and Provider’s indemnification obligation pursuant shall reasonably allow the Sellers to Section 5.3, in each casedefend against any such Third Party Claim, with respect the Buyer’s reasonable cooperation, if necessary, at the expense of the Sellers. The Sellers shall be entitled to Damages claimed or asserted against assume the handling of a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertioncivil Third Party Claim, a “Claim”), are subject to the following terms and conditions:
provided that: (a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has Sellers have notified the Buyer thereof within 10 days of receipt of notice of a Claim, (1) notify the Third Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim have certified in advance and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period in writing that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense they will bear all consequences of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, proceeding without any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
limits; and (b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is Defendant will be entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party mayappoint, at its own cost and expense, participate inanother attorney on his behalf to handle the case jointly with the attorney on behalf of the Sellers. The Sellers shall act within the framework of the above in order to bring such proceeding to conclusion. In any case, the Seller will not be entitled to bring a legal proceeding to conclusion by way of a settlement and/or arrangement and/or submit the dispute underlying the case to be resolved by way of a plea bargain, or admit any liability, unless with the prior written notice of the Buyer (other than in a settlement in which there is nothing but not control, any defense or settlement of any Claim controlled a monetary payment by the Indemnifying Party pursuant to this Section 5.4.1(bSeller). Notwithstanding anything Neither the Buyer nor the Company may settle or pay any Third Party which claims in this Section 5.4.1(b) to a Third Party Claim if the contrary, defense is assumed by the Indemnifying Party may notSeller, without the express Seller’s prior written consent of or under a judgment that has not been stayed. If the Indemnified Party, agree to any compromise or settlement which Seller does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of against a Third Party Claim as provided for above, the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) Buyer shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is be entitled to conduct the proceeding as it deems fit, including by way of a settlement, and shall not lose its entitlement to indemnification under this Agreement), thereof or be liable in any way to the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to Seller as a final conclusion or settled at the discretion of the Indemnified Partyresult thereof. The Indemnified Party Seller shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made fully cooperate with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Buyer in its efforts to defend against a Third Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c)Claim.
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 2 contracts
Samples: Share Purchase Agreement (SHL Telemedicine LTD), Share Purchase Agreement (SHL Telemedicine LTD)
Third Party Claim. The Company Group memberService Recipient’s indemnification obligation pursuant to Section 5.2 8.1(A) and the Service Provider’s indemnification obligation pursuant to Section 5.38.1(B), in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 thirty (30) calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 VIII with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b2) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b8.1(D)(i)(2) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if it is determined that the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b8.1(D)(i)(2). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b8.1(D)(i)(2). Notwithstanding anything in this Section 5.4.1(b8.1(D)(i)(2) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c3) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b8.1(D)(i)(2), then this Section 5.4.1(c8.1(D)(i)(3) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if it is determined that the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c8.1(D)(i)(3).
(d4) Notwithstanding anything in this Section 5.4.1 8.1(D)(i) to the contrary, to the extent (1A) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 VIII and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b8.1(D)(i)(2) or the Indemnified Party’s defense pursuant to Section 5.4.1(c8.1(D)(i)(3), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 2 contracts
Samples: Transition Services Agreement (Noble Corp PLC), Transition Services Agreement (Paragon Offshore Ltd.)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3If any Indemnity Claim is based upon any claim, in each casedemand, with respect to Damages claimed suit or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a action of any third party against an indemnified party (that third-party claim or assertion, a “Third Party Claim”), are subject to then the following terms and conditions:
(a) The Indemnified Party shallindemnified party, with reasonable promptness after at the Indemnified Party has notice time it delivers the Notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Third Party Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability offer to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether indemnifying party the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects option to assume the defense of the Third Party Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and which option may be exercised by the Indemnifying Party shall have indemnifying party by written notice to the right to defendindemnified party, at acknowledging its sole cost and expense (if the Indemnified Party is entitled to indemnification obligation under this Agreement)Article 8 with respect to such Third Party Claim and assuming the defense thereof, such Claim by all appropriate proceedingswithin fifteen (15) days after the indemnified party gives written notice thereof. If the indemnifying party exercises the option, which proceedings then it shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to expense assume the defense of the Claim or if Third Party Claim, shall upon the Indemnifying Party elects to assume the defense final determination thereof fully discharge at its own expense all liability of the Claim indemnified party with respect to the Third Party Claim, and shall be entitled, at its sole expense but without any liability of the indemnified party therefor, to compromise or settle the Third Party Claim. From the time the indemnifying party so assumes such defense and while such defense is pursued diligently in good faith, the indemnifying party shall have no liability for attorneys’ fees or other costs of defense incurred by the indemnified party in connection with the Third Party Claim. If the indemnifying party does not exercise the option to defend a Third Party Claim, or fails to satisfy its obligations under Section 5.4.1(b)diligently defend such Third Party Claim, then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified indemnified party may undertake to defend such Third Party shall have the right to defend, Claim at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c)indemnifying party.
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Anth1, Inc), Stock Purchase Agreement (Anth1, Inc)
Third Party Claim. The Company Group member’s indemnification obligation pursuant 8.3.1 If an Indemnified Party becomes aware of any third party claim, potential claim, matter or event (a “Third Party Claim”) which might lead to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification claim being made under this Agreement against the Principal Indemnifying Party, the Indemnified Party shall procure that notice of such Third Party Claim is given as soon as reasonably practicable to the Principal Indemnifying Party and, subject to being fully indemnified (on an “after tax basis if appropriate in accordance with the principles in Schedule 1, Part 9) to its reasonable satisfaction by the Principal Indemnifying Party against all reasonable out-of-pocket costs and expenses incurred by the Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are and otherwise subject at all times to the following terms and conditionsthis paragraph 8:
(ai) shall not make and shall procure that is not made any admission of liability, agreement or compromise with any person, body or authority nor consent to the entry of any judgement or final order in relation to any such Third Party Claim except with prior consultation with, and the prior agreement (not to be unreasonably withheld or delayed) of, the Principal Indemnifying Party;
(ii) shall take such action as the Principal Indemnifying Party may reasonably request after consultation with the Indemnified Party to avoid, dispute, resist, appeal, compromise or defend such Third Party Claim or any adjudication in respect of that Third Party Claim; and
(iii) if so required by the Principal Indemnifying Party in writing shall ensure that the Principal Indemnifying Party is placed in a position to take on or take over the day-to-day conduct of all proceedings or negotiations of whatever nature arising in connection with the Third Party Claim in question (by transferring the proceedings to the Principal Indemnifying Party if so required and where reasonably possible to do so, subject as set out below, through the provision of a power of attorney, or otherwise) and provide (or, if relevant, procure that there is provided) such information and assistance as the Principal Indemnifying Party may reasonably require in connection with the preparation for and conduct of such proceedings or negotiations provided that the Principal Indemnifying Party shall keep the Indemnified Party informed of the progress of any proceedings and shall consult with the Indemnified Party prior to taking any action which may affect the Indemnified Party, or any business or asset of the Indemnified Party. Nothing in this paragraph 8.3.1 shall oblige the Indemnified Party to grant a power of attorney to the Principal Indemnifying Party in respect of the Third Party Claim.
8.3.2 The Indemnified Party shallshall be at liberty, without reference to the Principal Indemnifying Party and without prejudice to its rights against the Principal Indemnifying Party or against any other Indemnifying Party, to admit, compromise, settle, discharge or otherwise deal with any Third Party Claim:
(i) if no response is received from the Principal Indemnifying Party within a reasonable promptness after period (in respect of the situation) in relation to any communication from the Indemnified Party has notice of a Claim, (1) notify notifying the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Principal Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify that the Indemnified Party intends to admit, compromise, settle, discharge or otherwise deal with that Litigation; or
(Aii) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled not indemnified as required by paragraphs 7 and 8.3.1 above.
8.3.3 The Principal Indemnifying Party, or RBS (on behalf of the Investors) (should the largest allocation of the Third Party Claim in question be to indemnification under this Agreementthe Retained Business), shall keep any other Indemnifying Party or Parties to filewhom the Third Party Claim in question has been allocated informed of significant developments in the Third Party Claim and shall provide updates as reasonably requested by such other Indemnifying Party or Parties.
8.3.4 In the event that there is more than one Indemnifying Party in respect of a particular Third Party Claim:
(i) the Indemnifying Parties shall be severally, during the Election Periodbut not jointly, any motion, answer or other pleadings that liable to indemnify the Indemnified Party shall reasonably deem necessary or appropriate in the proportions in which the Third Party Claim has been allocated to protect its interests or those of the Indemnifying Party.their respective Acquired Businesses; and
(bii) If to the Indemnifying extent that the Third Party notifies Claim is allocated to the Retained Business, the Investors shall severally indemnify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damagestheir Consortium Proportions.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 2 contracts
Samples: Consortium and Shareholders’ Agreement (Banco Santander, S.A.), Consortium and Shareholders’ Agreement (Royal Bank of Scotland Group PLC)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3In the case of a Third Party Claim, the provisions in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:paragraphs of this Section 8.5 apply.
(a) The Indemnifying Party shall have the right, at its expense, to participate in but not control the negotiation, settlement or defence of the Third Party Claim, which control shall rest at all times with the Indemnified Party shallParty, with reasonable promptness after unless the Indemnifying Party:
(i) irrevocably acknowledges in writing complete responsibility for, and agrees to indemnify the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detailrespect of, the nature of the Third Party Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice ; and
(the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (Aii) whether the Indemnifying Party disputes its potential liability furnishes evidence to the Indemnified Party under this Article 5 with respect which is satisfactory to such Claim and (B) whether the Indemnified Party, acting reasonably, of its financial ability to indemnify the Indemnified Party, in which case the Indemnifying Party desires, may assume such control at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes expense through counsel of its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Partychoice.
(b) If the Indemnifying Party notifies elects to assume control as contemplated in Section 8.5(a), the Indemnifying Party shall reimburse the Indemnified Party within for all of the Election Period Indemnified Party’s out-of-pocket expenses incurred as a result of such participation or assumption. The Indemnified Party shall continue to have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party elects consents to the retention of such counsel at its expense or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences), in which case the fees and disbursements of such counsel shall be paid by the Indemnifying Party. The Indemnified Party shall co-operate with the Indemnifying Party so as to permit the Indemnifying Party to conduct such negotiation, settlement and defence and for this purpose shall preserve all relevant documents in relation to the Third Party Claim, allow the Indemnifying Party access on reasonable notice to inspect and take copies of all such documents and require its personnel to provide such statements as the Indemnifying Party may reasonably require and to attend and give evidence at any trial or hearing in respect of the Third Party Claim.
(c) If, having elected to assume the defense control of the negotiation, settlement or defence of the Third Party Claim, the Indemnifying Party thereafter fails to conduct such negotiation, settlement or defence with reasonable diligence, then this Section 5.4.1(b) the Indemnified Party shall apply (but not otherwise) be entitled to assume such control and the Indemnifying Party shall have be bound by the right to defend, at its sole cost and expense (if results obtained by the Indemnified Party is entitled with respect to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by Third Party Claim.
(d) If the Indemnifying Party fails to a final conclusion assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or settled at pay the discretion of amount claimed and the Indemnifying Party in accordance with this Section 5.4.1(b). The shall be bound by the results obtained by the Indemnified Party may, at its own cost and expense, participate in, but with respect to such Third Party Claim. Whether or not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to assumes control of the contrarynegotiation, settlement or defence of any Third Party Claim, the Indemnifying Party may not, shall not settle any Third Party Claim without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned withheld or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Grandview Gold, Inc.), Purchase and Sale Agreement (Grandview Gold, Inc.)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted If an indemnifiable claim is made against a person claiming indemnification under this Agreement (an “Indemnified Party”) Party by a third party (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditions:
(a) The such Indemnified Party shallshall promptly, with reasonable promptness after the but in no event more than 30 days following such Indemnified Party’s receipt of such Third Party has notice of a Claim, (1) notify the Party from whom indemnification is sought deliver a written notice (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describingto the Indemnifying Party with respect thereto, provided, however, that failure to provide such notice within the time period required shall not affect the Indemnified Party’s right to indemnification hereunder except to the extent that the Indemnifying Party was actually and materially prejudiced as a result of such failure. The Claim Notice shall describe to the extent material the facts giving rise to the Third Party Claim in reasonable detail, shall include copies of all material written documentation delivered to the nature Indemnified Party by the third party asserting such Third Party Claim and shall indicate the estimated amount, if reasonably practicable, of the Claim, and copies Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have 30 days from the date of any papers served with respect to such Claim. Within 30 calendar days after receipt personal delivery or mailing of any the Claim Notice (the “Election Notice Period”)) to notify the Indemnified Party in writing whether or not it shall assume the defense of the Indemnified Party against such Third Party Claim; provided, that if the Indemnifying Party assumes such defense, such written notice shall include a written notice acknowledging its unconditional obligation to fully indemnify the Indemnified Party for any Losses resulting from such Third Party Claim in accordance with, and subject to, the limitations contained in this Article VIII. Notwithstanding the foregoing, without the prior written consent of the Indemnified Party, the Indemnifying Party shall notify not have the right to assume the defense of any Third Party Claim described in a Claim Notice that (i) seeks an injunction or other equitable relief as a remedy, (ii) relates to or arises in connection with any criminal or quasi-criminal allegation, proceeding, action, 00000000.00.XXXXXXXX indictment or investigation, (iii) in the reasonable judgment of the Indemnified Party Party, is likely to result in liability that in the aggregate (A) whether will exceed the Indemnifying Party disputes its potential liability to then remaining amount of the Indemnified Party under this Article 5 with respect to such Claim and Cap or (B) whether will not exceed the Indemnifying Party desiresDeductible, at its sole cost and expense(iv) primarily relates to a claim or demand of, to defend or a dispute with, a Material Customer of the Indemnified Party against such Claim. If Company or (v) the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable defense of which by the Indemnifying Party under this Agreementcould otherwise have a material adverse effect on the Indemnified Party. The Indemnified Party is hereby authorized, at the sole cost All costs and expense of expenses incurred by the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement)in defending such claim or demand shall be a liability of, to fileand shall be paid by, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If . In the event that the Indemnifying Party notifies the Indemnified Party within the Election Notice Period that the Indemnifying Party elects it desires to assume the defense of the a Third Party Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and except as herein provided, the Indemnifying Party shall have the right to defenddo so by appropriate proceedings. If the Indemnifying Party has the right to and elects to assume the defense of a Third Party Claim, at its sole cost the Indemnifying Party shall select counsel, contractors and expense (if consultants of recognized standing and competence; shall take all steps reasonably necessary in the defense or settlement of such Third Party Claim; and shall diligently pursue the resolution of such Third Party Claim. If the Indemnified Party is entitled desires to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any such defense or settlement of any Claim controlled by settlement, it may do so at its sole cost and expense; provided, however, that the Indemnifying Party pursuant shall pay all reasonable fees, costs and expenses of one outside counsel in connection with such participation (i) if it requests the Indemnified Party to this Section 5.4.1(b). Notwithstanding anything participate or (ii) if in this Section 5.4.1(b) the opinion of outside counsel to the contraryIndemnified Party, a conflict or potential conflict exists between the Indemnified Party and the Indemnifying Party that would make joint representation of the Indemnifying Party and the Indemnified Party impermissible under applicable standards of professional conduct. If the Indemnifying Party chooses to defend or prosecute any Third Party Claim, all of the parties hereto shall reasonably cooperate in the defense or prosecution thereof. Subject to attorney-client privilege, such cooperation shall include the retention and (upon the Indemnifying Party’s reasonable request) the provision to the Indemnifying Party of records and information which are relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder; provided, however, that any out-of-pocket cost incurred by the Indemnified Party in connection with such cooperation shall be at the Indemnifying Party’s expense. If the Indemnifying Party has assumed the defense of a Third Party Claim, the Indemnifying Party may notonly settle or compromise a Third Party Claim with the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld or delayed); provided, however, that the Indemnifying Party may settle or compromise such a Third Party Claim without the express prior written consent of the Indemnified Party, agree to any Party if such settlement or compromise or settlement which does not include an (x) provides solely for the payment of money by the Indemnifying Party and includes a complete and unconditional release of the Indemnified Party from all Damages.
liability in respect of such Third Party Claim and (cy) does not subject the Indemnified Party to any injunctive relief or other equitable remedy. If the Indemnifying Party fails to notify does not defend the Indemnified Party within the Election Period that against a Third Party Claim for which the Indemnifying Party elects to assume has an indemnification obligation hereunder, whether by not giving the defense of the Claim Indemnified Party timely notice as provided above or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b)otherwise, then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defenddefend and settle such Third Party Claim; provided that the amount of any such Third Party Claim, at or, if the sole cost and expense same be contested by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be the liability of the Indemnifying Party (if hereunder, subject to the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything limitations set forth in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesARTICLE VIII.
Appears in 1 contract
Samples: Share Purchase Agreement (Cdi Corp)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, (i) If the claim or demand set forth in each case, with respect to Damages claimed the Notice of Claim is a claim or demand asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “"Third Party Claim”"), are the Company will have 15 calendar days after the date of receipt by the Company of the Notice of Claim (the "Notice Date") to notify the Indemnified Parties in writing of the election by the Company to defend the Third Party Claim on behalf of the Indemnified Parties, provided, however, that the Company will be entitled to assume the defense of any such Third Party Claim only if it unconditionally and irrevocably undertakes to indemnify all Indemnified Parties in respect thereof (subject to the following terms and conditions:any applicable limitations set forth in Section 6.1).
(aii) The Indemnified If the Company elects to defend a Third Party shall, with reasonable promptness after Claim on behalf of the Indemnified Party has notice of a ClaimParties, (1) notify the Party from whom indemnification is sought (Indemnified Parties will make available to the “Indemnifying Party”) Company and their agents and representatives all records and other materials in their possession which are reasonably required in the defense of the existence of that Claim and (B) transmit to the Indemnifying Third Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies the Company will pay all expenses payable in connection with the defense of the Third Party Claim as they are incurred (subject to any papers served with respect to such Claim. Within 30 calendar days after receipt of applicable limitations set forth in Section 6.1).
(iii) In no event may the Company settle or compromise any Third Party Claim Notice (the “Election Period”), the Indemnifying Party shall notify without the Indemnified Party (A) whether Parties' consent, which may not be unreasonably withheld, provided, however, that if a settlement is presented by the Indemnifying Party disputes its potential liability Company to the Indemnified Party under this Article 5 with respect Parties for approval and the Indemnified Parties withhold their consent thereto, then any amount by which the final Losses (including reasonable attorneys' fees and charges) resulting from the resolution of the matter exceeds the sum of the rejected settlement amount plus attorneys' fees incurred to such Claim date will be excluded from the amount covered by the indemnification provided for in this Agreement and shall be borne by the Indemnified Parties.
(Biv) whether If the Indemnifying Party desires, at its sole cost and expense, Company elects to defend a Third Party Claim, the Indemnified Parties will have the right to participate in the defense of the Third Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost Indemnified Parties' expense (and expense of without the Indemnifying Party (but only if the Indemnified Party is entitled right to indemnification for such expense under this Agreement), to fileprovided, during the Election Periodhowever, any motion, answer or other pleadings that the reasonable fees and expenses of counsel retained by the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those Parties will be at the expense of the Indemnifying PartyCompany if (A) the use of the counsel chosen by the Company to represent the Indemnified Parties would present such counsel with a conflict of interest; (B) the parties to such proceeding include both Indemnified Parties and the Company and there may be legal defenses available to Indemnified Parties which are different from or additional to those available by the Company; (C) within 10 calendar days after being advised by the Company of the identity of counsel to be retained to represent Indemnified Parties, they shall have objected to the retention of such counsel for valid reasons (which shall be stated in a written notice to the Company), and the Company shall not have retained different counsel satisfactory to the Indemnified Parties; or (D) the Company shall have authorized the Indemnified Parties to retain a single separate counsel at the expense of the Company, such authorization to be made by the directors who are not designees of Purchaser or its Affiliates.
(bv) If the Indemnifying Company does not elect to defend a Third Party notifies Claim, or does not defend a Third Party Claim in good faith, the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall Parties will have the right to defendright, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree addition to any compromise other right or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall remedy it may have the right to defendhereunder, at the sole cost and exclusive expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contraryCompany, to the extent (1) the Indemnifying defend such Third Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesClaim.
Appears in 1 contract
Samples: Investment Agreement (Omega Healthcare Investors Inc)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, 5.7.1. Where an Indemnified Party has received Notice of any Claim or becomes aware of any matter which may result in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement Claim from any other Person (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditions:
(a) The such Indemnified Party shallshall within 30 (thirty) days of receiving such Notice or becoming aware of any Third Party Claim, with reasonable promptness after the Indemnified Party has give written notice of a Claim, (1) notify the such Third Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice in reasonable detail in light of the circumstances then known to the Indemnified Party (a “Third Party Claim Notice”) describing, in reasonable detail, ); provided that the nature failure of such Indemnified Party to provide such notice shall not relieve the Indemnifying Party of its obligations under Clause 5 of this Agreement.
5.7.2. Upon receipt of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Third Party Claim Notice (the “Election Period”)Notice, the Indemnifying Party shall notify be obligated to undertake necessary legal actions to defend the Indemnified Party (A) whether Claim or take such action as may be best suitable in the Indemnifying Party disputes its potential liability circumstances with counsel reasonably satisfactory to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desiresParty, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If ’s sole expense. Notwithstanding the Indemnifying Party notifies foregoing, the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, (i) at its own cost and expense, retain separate counsel to participate in, but not control, in such defence or any defense negotiations or settlement of any Claim controlled by thereunder or (ii) in the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If event the Indemnifying Party fails to notify assume such defense within the period set out in Clause 5.7.3 (i) below, the Indemnified Party within may assume the Election Period that defense or compromise such Third Party Claim by itself, in which case: (a) the Indemnifying Party elects shall remain liable to assume the defense Indemnified Parties for the costs and expenses of the such Third Party Claim or if the Indemnifying Party elects to assume the defense including all court costs and payment of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(cany interim amounts; (b) shall apply (but not otherwise) and the Indemnified Party shall have the right to defendcontest, at settle, compromise or otherwise dispose of such Third Party Claim without the sole cost and expense consent of the Indemnifying Party.
5.7.3. The Indemnifying Party shall make the indemnity payment in cash (or such other manner agreed in writing between the Indemnified Party and Indemnifying Party) to the Indemnified Party upon occurrence of earlier of the following: (i) the Indemnifying Party failing to assume defence within 10 (ten) days from the receipt of the Third Party Claim Notice or such other period within which such defense ought to be assumed to comply with requirements mandated by the third party claimant’s notice (where the third party claimant is a Governmental Authority) or otherwise as required under Applicable Law; or (ii) the Indemnifying Party having assumed the defence of the Third Party Claim, where a payment obligation under a Third Party Claim becomes due and payable including pursuant to a judgement, order by any Governmental Authority or arbitral award, in each case, which is not subject to any stay or other legal suspension or postponement, or a settlement or compromise having been consummated. Provided however that during the process of defense of the Third Party Claim, if the Indemnified Party is entitled required to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party incur any costs/expenses (including but not limited to pursuant to a final conclusion notice from any Governmental Authority or settled at interim order passed by a court of law requiring the discretion payment of whole or in part of the Indemnified Party. The Indemnified Third Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayedClaim). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required immediately upon receipt of a notice from the Indemnified Party in this regard, remit the said amounts to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant , subject to Section 5.4.1(c)receipt of documents evidencing such amounts being payable, and or otherwise discharge such Third Party Claim (as per the instructions of the Indemnified Party shall reimburse the Party).
5.7.4. The Indemnifying Party agrees that it will not, without the prior written consent of the Indemnified Party: (i) make any payment to the relevant third party; (ii) consent to the entry of any judgment; (iii) enter into any settlement, with respect to any such Third Party Claim; and/or (iv) make any filings or written submission, whether independently or in full for all of those costs and expensesresponse to any request or requirement to make such submission with any other third party including a Governmental Authority, with respect to the Third Party Claim.
Appears in 1 contract
Samples: Share Subscription Agreement
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3Promptly after receipt by the Buyer or ----------------- the Seller of notification of the assertion, in each caseor possible assertion, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party of any claim, action, suit, proceeding or demand with respect to which indemnification shall or may be claimed by the Buyer or the Seller pursuant to this Section 6 (the "THIRD PARTY CLAIM") (such recipient being referred to hereinafter as the "INDEMNITEE") the Indemnitee shall give written notice describing the Third Party Claim in reasonable detail (an "INDEMNITY NOTICE") to the other party (herein, the "INDEMNITOR"). Failure by the Indemnitee to send the Indemnity Notice shall not release the Indemnitor from its
1. Neither the Indemnitor nor the Indemnitee shall adjust, compromise or settle any such claim, action, suit, proceeding or demand without the written consent of the other, which consent shall not be unreasonably withheld. As to any Third Party Claim the defense of which has been assumed by the Indemnitor, (i) the Indemnitee shall cooperate fully in such defense as and to the extent reasonably requested by the Indemnitor (such cooperation shall include the retention and, upon the Indemnitor's request, the provision to the Indemnitor of records and information that third-party are reasonably relevant to such claim or assertiondemand and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder) and (ii) the Indemnitor shall not, subsequent to such assumption, be liable for any legal expenses incurred by the Indemnitee. In the event of any claim under this Section 6 for indemnification (whether or not in connection with a “Third Party Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after Indemnitee shall promptly advise the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describingIndemnitor in writing, in reasonable detail, the nature of the Claim, amount and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent circumstances surrounding said claim (which notice shall not also be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant deemed to this Section 5.4.1(cbe an Indemnity Notice).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 1 contract
Samples: General Partnership Interest Purchase Agreement (HWCC Tunica Inc)
Third Party Claim. The Company Group member’s indemnification obligation pursuant In the event that MM2, an MM2 Shareholder, a Wien Entity or any other party entitled to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) Section 12.02 hereof shall choose to assert a claim for Loss or potential Loss based upon a claim by a third party (that third-party claim or assertion, a “"Third Party Claim”"), are subject to the following terms and conditions:
party seeking indemnification (a"Indemnified Party") The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) shall notify the Party from whom party against which indemnification is sought (the “"Indemnifying Party”") in writing of such claim, promptly following the occurrence of the existence event giving rise thereto, certifying that such a claim has been asserted and the basis therefor which shall be set forth in reasonable detail ("Notification").
(i) The Indemnifying Party shall acknowledge receipt of that Claim the Notification and advise the Indemnified Party in writing twenty (B20) transmit days after receipt thereof as to whether the Indemnifying Party a notice (a “agrees to such Third Party Claim Notice”) describing, in reasonable detail, and whether the nature defense of the Claim, Third Party Claim shall be undertaken by counsel of the choice of and copies at the expense of any papers served with respect to such Claimthe Indemnifying Party. Within 30 calendar days after receipt of any Claim Notice (If the “Election Period”)Indemnifying Party so agrees, the Indemnifying Party shall notify be deemed to have accepted any indemnifiable Loss suffered arising from such Third Party Claim, the Indemnified Party (A) whether defense of which has been assumed by the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such ClaimParty. If the Indemnifying Party does not notify advises the Indemnified Party within that it shall undertake the Election Period that defense of the Third Party Claim, the Indemnified Party shall deliver all the documents related to the Third Party Claim to the Indemnifying Party disputes or to its potential liability with respect to such Claimcounsel, any Damages resulting from such Claim shall be payable by after which the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense responsibility of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement)for the defense of the Third Party Claim shall cease, to file, during the Election Period, any motion, answer or other pleadings except that the Indemnified Party shall reasonably deem necessary or appropriate make available all documents, books and records in its possession related to protect its interests or those of the Third Party Claim, at no expense to the Indemnifying Party, and shall fully cooperate with counsel for the Indemnifying Party, including providing its personnel who are acquainted with the facts or the documents or books and records related to the Third Party Claim.
(bii) If the Indemnifying Party notifies advises the Indemnified Party within that the Election Period defense of the Third Party Claim will not be undertaken, either the Indemnified Party shall settle such Third Party Claim (in which case, the amount of such settlement and all attorneys' fees attendant to the achievement of such settlement shall be deemed included in any computation to determine Loss), or the Indemnified Party shall notify the Indemnifying Party of the identity of the counsel for the Indemnified Party who has been selected to defend the Third Party Claim. The Indemnifying Party shall fully cooperate with the Indemnified Party and its counsel to the extent that the Indemnifying Party elects to assume the defense has knowledge of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion facts or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) circumstances relating to the contrary, the Indemnifying Third Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have cause its counsel to be available to the right Indemnifying Party or its counsel to defend, at the sole cost and expense respond to any inquiries of the Indemnifying Party (if concerning the progress of such defense. In the event that the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently assert a claim for Loss as a result of any loss suffered by the Indemnified Party to a final conclusion in settling or settled at defending such Third Party Claim, the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that notify the Indemnifying Party shall not be liable for any in writing of such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed)claim. The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 shall pay all costs related to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) settlement or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and within thirty (30) days after a demand for the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesLoss or any component part is made.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation Upon receipt of notice of a claim for indemnity from an Indemnified Party pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.37.04, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defendassume the defense and control any Third Party Claim, at its sole cost and expense (if but shall allow the Indemnified Party is entitled a reasonable opportunity to indemnification under this Agreement), participate in the defense of such Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by with its own counsel and at its own expense; provided that if (i) the Indemnifying Party and the Indemnified Party are both named parties to a final conclusion the proceedings and, in the reasonable opinion of counsel to the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or settled potential differing interests between them, or (ii) in the reasonable opinion of counsel to the Indemnified Party, such Third Party Claim involves the potential imposition of criminal liability on the Indemnified Party, then, in each such case, the applicable Indemnified Parties shall be entitled to participate in any such defense with one separate counsel at the discretion reasonable expense of the Indemnifying Party in accordance with this Section 5.4.1(b)Party. The Indemnifying Party shall select counsel of recognized standing and competence after consultation with the Indemnified Party may, at its own cost and expense, participate in, but not control, any shall take all reasonably necessary steps in the defense or settlement of any Claim controlled by the such Third Party Claim. The Indemnifying Party pursuant shall be authorized to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) consent to a settlement of, or the contraryentry of any judgment arising from, the Indemnifying any Third Party may notClaim, without the express written consent of the any Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not shall
(A) pay or cause to be liable for any paid all amounts arising out of such compromise settlement or settlement unless such compromise or settlement is made judgment concurrently with the Indemnifying Party’s express written consent (which shall not be unreasonably withheldeffectiveness of such settlement, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor not encumber any of the Indemnifying Party, the Indemnifying material assets of any Indemnified Party shall not be required or agree to bear the costs and expenses of the Indemnifying Party’s defense pursuant any restriction or condition that would apply to Section 5.4.1(b) or materially adversely affect any Indemnified Party or the conduct of any Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.business,
Appears in 1 contract
Samples: Asset Purchase Agreement
Third Party Claim. The Company Group member’s indemnification obligation pursuant In the event the facts giving rise to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming the claim for indemnification under this Agreement (an “Indemnified Party”) Article 10 shall involve any action or threatened claim or demand by a any third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after against the Indemnified Party has (a "Third Party Claim"), within the earlier of, as applicable, ten (10) days after receiving notice of the filing of a Claim, lawsuit or thirty (130) notify the Party from whom indemnification is sought (the “Indemnifying Party”) days after receiving notice of the existence of that a claim, demand, suit or proceeding (each a "Claim") giving rise to the claim for indemnification, the Indemnified Party shall send written notice of such Claim and (B) transmit to the Indemnifying Party a notice (a “the "Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b"). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release failure of the Indemnified Party from all Damages.
(c) If to give the Indemnifying Party fails to notify the Indemnified Party within the Election Period that Claim Notice shall not release the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification from liability under this Agreement)Article 10; provided, the Claim by all appropriate proceedingshowever, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any losses incurred by the Indemnified Party which would not have been incurred but for the delay in the delivery of, or the failure to deliver, the Claim Notice. Except as set forth below, the Indemnifying Party shall be entitled to defend such compromise Claim in the name of the Indemnified Party at his or settlement unless such compromise its own expense and through counsel of his or settlement its own choosing. The Indemnifying Party shall give the Indemnified Party notice in writing within ten (10) days after receiving the Claim Notice from the Indemnified Party in the event the Claim is made with one involving an instituted suit or proceeding, or otherwise within thirty (30) days, of his or its intent to do so. If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the Indemnified Parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s express 's request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent, which consent (which shall not be unreasonably withheld, conditioned delayed or delayed)conditioned. The Indemnified Party may elect, by notice in writing to the Indemnifying Party mayParty, to continue to participate through his or its own counsel, at his or its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice shall have the right to control the defense of the Claim with counsel reasonably acceptable to the Indemnified Party Party. In the event that the Indemnifying Party disputes its potential liability is controlling the defense of the Claim and shall have negotiated a settlement thereof, which proposed settlement is final and unconditional as to the parties thereto and contains an unconditional release of the Indemnified Party, without the Indemnified Party under this Article 5 being liable for damages of any kind or nature or being otherwise required to pay any amount of money to any third party and (B) such dispute is resolved in favor does not include the imposition of any restrictions on the part of the Indemnifying PartyIndemnified Party or require that the Indemnified Party make an admission of guilt or liability or deliver a confession of judgment, or any other non-financial obligation which, in the Indemnifying Party shall not be required to bear the costs and expenses reasonable judgment of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and renders such settlement unacceptable, the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesconsent to such settlement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Home Interiors & Gifts Inc)
Third Party Claim. The Company Group member’s In the event of a Third-Party Claim, the party seeking indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”"TENDERING PARTY") by a third party (that third-party claim or assertion, a “Claim”), are subject shall tender the defense of such Third Party Claim to the following terms and conditionsparty from whom INDEMNIFICATION IS SOUGHT ("NON-TENDERING PARTY"). The Non-Tendering Party shall, within ten (10) days after the receipt thereof, inform the Tendering Party in writing that the Non-Tendering Party will either:
(aI) The Indemnified ACCEPT THE TENDER OF THE DEFENSE WITHOUT A RESERVATION OF RIGHTS. If the Non-Tendering Party shall, with reasonable promptness after agrees that the Indemnified Third Party has notice of Claim is a Claim, (1) notify the Party from whom claim for which indemnification is sought provided FOR PURSUANT TO THE TERMS OF THIS AGREEMENT (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”"PROPER CLAIM"), the Indemnifying Non-Tendering Party shall notify accept the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense tender of the Indemnifying Party (but only if defense without a reservation of rights. In such an event the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Non-Tendering Party shall reasonably deem necessary or appropriate to protect its interests or those control all aspects of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of such Third Party Claim and shall indemnify the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Tendering Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all DamagesArticle VI.
(cII) ACCEPT THE TENDER OF THE DEFENSE WITH A RESERVATION OF RIGHTS. If the Indemnifying Non-Tendering Party fails questions whether the Third Party Claim is a Proper Claim, the Non-Tendering Party may accept the tender of the defense with a reservation of rights. In such an event, the Non-Tendering Party shall submit such Third Party Claim to notify arbitration immediately in order to determine whether it is a Proper Claim. While the Indemnified arbitration is pending, the Non-Tendering Party within the Election Period that the Indemnifying Party elects to assume shall control all aspects of the defense of such Third Party Claim. If the decision of the arbitrator(s) is that it is:
(A) a Proper Claim, and the Third Party Claim or if is still pending, the Indemnifying Non-Tendering Party elects to assume shall continue the defense of the such Third Party Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) and shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at indemnify and hold the sole cost and expense of the Indemnifying Tendering Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made harmless in accordance with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and VI;
(B) such dispute is resolved in favor of a Proper Claim, but the Indemnifying PartyThird Party Claim has already been concluded, the Indemnifying Non-Tendering Party shall indemnify and hold the Tendering Party harmless in accordance with this Article VI;
(C) a claim for which indemnification is not be required to bear the costs and expenses of the Indemnifying Party’s defense provided for pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(cterms of THIS AGREEMENT ("IMPROPER CLAIM"), and the Indemnified Third Party Claim is still pending, the Non-Tendering Party shall return all aspects of the defense of such Third Party Claim immediately to the Tendering Party. In such an event, the Tendering Party shall assume the control of all aspects of the defense of such Third Party Claim immediately and shall reimburse the Non-Tendering Party for all costs and Expenses (including, but not limited to, reasonable attorneys fees) incurred by the Non-Tendering Party in the defense of such Third Party Claim; or
(D) an Improper Claim, but the Third Party Claim has already been concluded, the Tendering Party shall reimburse the Indemnifying Non-Tendering Party for all costs and expenses (including, but not limited to reasonable attorneys fees) incurred by the Non-Tendering Party in full the defense of such Third Party Claim and shall reimburse the Non-Tendering Party for all of those costs and expensesamounts paid by the Non-Tendering Party for judgments or settlements relating to such Third Party Claim.
Appears in 1 contract
Samples: Purchase Agreement (Novex Systems International Inc)
Third Party Claim. The Company Group member’s indemnification obligation pursuant In the event that XXXX, BCI or any other party entitled to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) Section 11.02 hereof shall choose to assert a claim for Loss or potential Loss based upon a claim by a third party (that third-party claim or assertion, a “"Third Party Claim”"), are subject to the following terms and conditions:
party seeking indemnification (a"Indemnified Party") The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) shall notify the Party from whom party against which indemnification is sought (the “"Indemnifying Party”") in writing of such claim, promptly following the occurrence of the existence event giving rise thereto, certifying that such a claim has been asserted and the basis therefor which shall be set forth in reasonable detail ("Notification").
(i) The Indemnifying Party shall acknowledge receipt of that Claim the Notification and advise the Indemnified Party in writing twenty (B20) transmit days after receipt thereof as to whether the Indemnifying Party a notice (a “agrees to such Third Party Claim Notice”) describing, in reasonable detail, and whether the nature defense of the Claim, Third Party Claim shall be undertaken by counsel of the choice of and copies at the expense of any papers served with respect to such Claimthe Indemnifying Party. Within 30 calendar days after receipt of any Claim Notice (If the “Election Period”)Indemnifying Party so agrees, the Indemnifying Party shall notify be deemed to have accepted any indemnifiable Loss suffered arising from such Third Party Claim, the Indemnified Party (A) whether defense of which has been assumed by the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such ClaimParty. If the Indemnifying Party does not notify advises the Indemnified Party within that it shall undertake the Election Period that defense of the Third Party Claim, the Indemnified Party shall deliver all the documents related to the Third Party Claim to the Indemnifying Party disputes or to its potential liability with respect to such Claimcounsel, any Damages resulting from such Claim shall be payable by after which the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense responsibility of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement)for the defense of the Third Party Claim shall cease, to file, during the Election Period, any motion, answer or other pleadings except that the Indemnified Party shall reasonably deem necessary or appropriate make available all documents, books and records in its possession related to protect its interests or those of the Third Party Claim, at no expense to the Indemnifying Party, and shall fully cooperate with counsel for the Indemnifying Party, including providing its personnel who are acquainted with the facts or the documents or books and records related to the Third Party Claim.
(bii) If the Indemnifying Party notifies advises the Indemnified Party within that the Election Period defense of the Third Party Claim will not be undertaken, either the Indemnified Party shall settle such Third Party Claim (in which case, the amount of such settlement and all attorneys' fees attendant to the achievement of such settlement shall be deemed included in any computation to determine Loss), or the Indemnified Party shall notify the Indemnifying Party of the identity of the counsel for the Indemnified Party who has been selected to defend the Third Party Claim. The Indemnifying Party shall fully cooperate with the Indemnified Party and its counsel to the extent that the Indemnifying Party elects to assume the defense has knowledge of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion facts or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) circumstances relating to the contrary, the Indemnifying Third Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have cause its counsel to be available to the right Indemnifying Party or its counsel to defend, at the sole cost and expense respond to any inquiries of the Indemnifying Party (if concerning the progress of such defense. In the event that the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently assert a claim for Loss as a result of any loss suffered by the Indemnified Party to a final conclusion in 66 settling or settled at defending such Third Party Claim, the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that notify the Indemnifying Party shall not be liable for any in writing of such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed)claim. The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 shall pay all costs related to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) settlement or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and within thirty (30) days after a demand for the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesLoss or any component part is made.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3In the event of a Third-Party Claim, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditionsshall apply:
(a) The Indemnified the Claimant shall inform the Indemnifying Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) in writing of the existence Third-Party Claim in the relevant Notice of that Claim with all reasonable details and shall promptly make available to the latter and/or its counsels all relevant documentation which may be available;
(Bb) transmit the Claimant shall promptly grant and cause to grant to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detailand/or its counsels access to all relevant books and records and premises and employees of the Claimant, the nature Company or any Subsidiary (as the case may be), to the extent reasonably necessary in connection with the defense of the Third-Party Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice ;
(the “Election Period”), c) the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability give written notice to the Indemnified Claimant as to whether or not it wishes to participate to, by its own counsels, the defense of the Third-Party under this Article 5 with respect to such Claim it remaining agreed and understood that the defense will be in any event led by the Claimant who (B1) whether the Indemnifying Party desiresshall retain, at its sole cost discretion, any decision as to the conduct of the defense and expensethe proceedings (including the execution of a settlement), to defend the Indemnified maximum extent possible under applicable Law, and (2) shall, if applicable, exercise its rights to cause the Company or any Subsidiary (as the case may be) to diligently and promptly manage any such Third-Party against such Claim. If , taking without delay any reasonable actions, and preparing, also through its counsels, any relevant filings, judicial or administrative acts or other documents, with due care and with the view of minimizing the Third-Party Claim; and (3) shall regularly (in reasonable intervals) inform the Indemnifying Party does not about the status of the matter and promptly notify the Indemnified Party within the Election Period that the Indemnifying Party disputes of all material correspondence or other actions or developments in connection with the Third-Party Claim;
(d) in the event that an offer is made to the Claimant, the Company or any Subsidiary (as the case may be), to settle any matter giving rise to an indemnification obligation, which the Claimant, but not the Indemnifying Party, is willing to accept, the Claimant, the Company or any Subsidiary (as the case may be), shall be entitled to enter into such settlement, but the extent of the Indemnifying Party’s indemnification obligation will be agreed between the Parties in good faith, or, failing agreement, decided by arbitration hereunder as the amount of the settlement, or, if lower, as an amount equal to the Loss/Damage that, in the determination of the arbitration panel, would have occurred if the matter had not been settled;
(e) in the event that (x) an offer is made to the Claimant, the Company or any Subsidiary (as the case may be), to settle any matter giving rise to an indemnification obligation, which the Indemnifying Party, but not the Claimant, is willing to accept, and (y) the Indemnifying Party has accepted in writing its potential liability with respect indemnification obligation in relation to such Third-Party Claim, then the Claimant, the Company or any Damages resulting from such Claim Subsidiary (as the case may be) shall be payable free not to enter into such settlement and to commence or continue litigation, at its/their own expense, but the Indemnifying Party’s liability shall be limited to the amount of the proposed settlement;
(f) it is also understood that, all costs and expenses incurred by the Indemnifying Party under this Agreement. The Indemnified in participating to the relevant Third-Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party Claim shall reasonably deem necessary or appropriate to protect its interests or those of be borne by the Indemnifying Party.; and
(bg) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to any indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently amount due by the Indemnifying Party in relation to a final conclusion Third-Party Claim shall be paid, to the entity directly affected by the Loss, exclusively after the issuance of a definitive court decision or settled at order or an arbitration award deciding on the discretion Third-Party Claim, or a definitive settlement agreement on the Third-Party Claim (provided that such settlement agreement is entered into with the prior written consent of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made compliance with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(cabove provisions), and within 30 (thirty) Business Days after the Indemnified Party shall reimburse issuance of such definitive judicial judgement or arbitration award or the Indemnifying Party in full for all execution of those costs and expensessuch settlement agreement.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant 8.3.1 If an Indemnified Party becomes aware of any third party claim, potential claim, matter or event (a “Third Party Claim”) which might lead to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification claim being made under this Agreement (an “Indemnified against the Indemnifying Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has shall procure that notice of a Claim, (1) notify the such Third Party from whom indemnification Claim is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit given as soon as reasonably practicable to the Indemnifying Party a notice and, subject to being fully indemnified (a “Claim Notice”on an after tax basis if appropriate in accordance with the principles in Schedule 3, Part 10) describing, in to its reasonable detail, satisfaction by the nature of Indemnifying Party against all reasonable out-of-pocket costs and expenses incurred by the ClaimIndemnified Party, and copies otherwise subject at all times to this paragraph 8:
(i) shall not make any admission of liability, agreement or compromise with any person, body or authority nor consent to the entry of any papers served judgement or final order in relation to any such Third Party Claim except with respect prior consultation with, and the prior agreement (not to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”)be unreasonably withheld or delayed) of, the Indemnifying Party;
(ii) shall take such action as the Indemnifying Party shall notify may reasonably request after consultation with the Indemnified Party to avoid, dispute, resist, appeal, compromise or defend such Third Party Claim or any adjudication in respect of that Third Party Claim; and
(Aiii) whether if so required by the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period in writing shall ensure that the Indemnifying Party disputes its potential liability is placed in a position to take on or take over the conduct of all proceedings or negotiations of whatever nature arising in connection with respect to the Third Party Claim in question and provide (or, if relevant, procure that there is provided) such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost information and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, assistance as the Indemnifying Party may not, without reasonably require in connection with the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) preparation for and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control conduct of such defense and proceedings, including any compromise proceedings or settlement of such defense and proceedings, negotiations provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by keep the Indemnified Party pursuant informed of the progress of any proceedings and shall consult with the Indemnified Party prior to this Section 5.4.1(c)taking any action which may affect the Indemnified Party, or any business or asset of the Indemnified Party.
(d) Notwithstanding anything in this Section 5.4.1 8.3.2 The Indemnified Party shall be at liberty, without reference to the contrary, to the extent (1) the Indemnifying Party has delivered a notice and without prejudice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of rights against the Indemnifying Party, to admit, compromise, settle, discharge or otherwise deal with any Third Party Claim:
(i) if the Indemnifying Party fails to request the Indemnified Party to take any appropriate action within 7 days of receipt of the notice given under sub-paragraph 8.3.1 above;
(ii) if no response is received from the Indemnifying Party within a reasonable period in relation to any continuing dispute, negotiation or correspondence;
(iii) if the Indemnifying Party fails to indemnify the Indemnified Party as required by paragraph 8.3.1 above; or
(iv) to the extent that failure to do so would vitiate any contract of insurance of any Indemnified Party under which such Indemnified Party is able to recover in respect of the relevant Claim.
8.3.3 Without prejudice to paragraph 8.3.1 and 8.3.2 above where, in respect of any Third Party Claim, the Liability in respect of the claim falls to be divided (in whatever proportions) between two or more parties pursuant to this Agreement, the relevant parties shall consult together and co-operate in relation to the conduct of the relevant claim and shall not make any admission of liability, agreement or compromise with any person, body or authority in relation to such claim without prior consultation with and the prior agreement of the others (such agreement not to be unreasonably withheld or delayed, having regard to the relevant proportions of liability to be borne) and shall take such action as the other(s) may reasonably request after consultation to avoid, dispute, resist, appeal, compromise or defend such Third Party Claim or any adjudication in respect of such claim, provided that it shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) do anything that would materially damage its interests or the Indemnified Party’s defense pursuant to Section 5.4.1(c)result in any legal, and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesprofessional or other privilege being waived.
Appears in 1 contract
Samples: Consortium and Shareholders’ Agreement (Banco Santander Central Hispano Sa)
Third Party Claim. The Company Group member’s If any of the Buyer Indemnified Parties or the Seller Indemnified Parties intends to seek indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation the provisions of Sections 9.2 or 9.3 hereof (each an "Indemnified Party"), the respective Indemnified Party shall promptly give notice hereunder to the other Party (the "Indemnifying Party") after obtaining written notice of any claim, investigation, or the service of a summons or other initial or continuing legal or administrative process or Proceeding in any action instituted against the Indemnified Party as to which recovery or other action may be sought against the Indemnified Party pursuant to Section 5.3Sections 9.2 or 9.3 hereof. The Indemnified Party shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim; provided, however, that the Indemnified Party shall not be required to permit such an assumption of the defense of any claim or Proceeding which, if not first paid, discharged or otherwise complied with, would result in a material interruption or disruption of the business of the Indemnified Party, or any material part thereof. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of the Indemnified Party to give such notice (or by delay by the Indemnified Party in giving such notice) unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of the failure to give, or delay in giving, such notice. If the Indemnifying Party assumes the defense of such claim, investigation or Proceeding resulting therefrom, the obligations of the Indemnifying Party hereunder as to such claim, investigation or Proceeding shall include taking all steps necessary in the defense or settlement of such claim, investigation or Proceeding and holding the Indemnified Party harmless from and against any and all Losses arising from, in each caseconnection with or incident to any settlement approved by the Indemnifying Party or any judgment entered in connection with such claim, with respect investigation or Proceeding (subject to Damages claimed the remaining Allowed Deductible, if any, which shall be paid by Buyer, and indemnification limits set forth in this Agreement), except where, and only to the extent that, the Indemnifying Party has been prejudiced by the actions or asserted against a person claiming omissions of the Indemnified Party. Notwithstanding the foregoing, the assumption of the defense of any claim, investigation or Proceeding by the Indemnifying Party shall not constitute an admission of responsibility to indemnify or in any manner impair or restrict the Indemnifying Party's rights to later seek to be reimbursed its costs and expenses if indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claimclaim, investigation or Proceeding was not required. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the The Indemnifying Party shall notify not, in the defense of such claim or any Proceeding resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party (Awhich consent shall not be unreasonably withheld, delayed or conditioned) whether or enter into any settlement (except with the Indemnifying Party disputes its potential liability written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned) unless (i) there is no finding or admission of any violation of Applicable Law and no material effect on any claims that could reasonably be expected to be made against the Indemnified Party, (ii) the sole relief provided is monetary damages that are paid in full for Losses (subject to the remaining Allowed Deductible, if any, which will be paid by Buyer, but which payment does not exceed the indemnification limits set forth in this Agreement), and (iii) the settlement shall include the giving by the claimant or the plaintiff to the Indemnified Party under this Article 5 with a release from all liability in respect to such Claim and (B) whether claim or litigation. If the Indemnifying Party desiresassumes the defense of such claim, at its sole cost and expenseinvestigation or Proceeding resulting therefrom, to defend the Indemnified Party against shall be entitled to participate in the defense of the claim, but solely by observation and comment to the Indemnifying Party, and the counsel selected by the Indemnified Party shall not appear on its behalf in any Proceeding arising hereunder. The Indemnified Party shall bear the fees and expenses of any additional counsel retained by it to participate in its defense unless any of the following shall apply: (i) the employment of such Claimcounsel shall have been authorized in writing by the Indemnifying Party, or (ii) the Indemnifying Party's legal counsel shall advise the Indemnifying Party in writing, with a copy to the Indemnified Party, that there is a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have common counsel. If clause (i) or (ii) in the immediately preceding sentence is applicable, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party to represent the Indemnified Party and such Indemnified Party's counsel may appear on its behalf in any Proceeding, notwithstanding the first sentence of this paragraph. In no event, however, shall the Indemnifying Party be obligated to pay the costs and expenses of more than one such separate counsel for any one complaint, claim, action or Proceeding in any one jurisdiction. If the Indemnifying Party does not notify assume the defense of any such claim by a Third Party or litigation resulting therefrom after receipt of notice from the Indemnified Party, the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to may defend against such Claim, any Damages resulting from claim or litigation in such Claim shall be payable by the Indemnifying Party under this Agreementmanner as it reasonably deems appropriate. The Indemnified Party is hereby authorized, at may not settle such claim or litigation without the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those written consent of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld. Each Party shall cooperate in good faith and in all respects with each Indemnifying Party and its representatives (including without limitation its counsel) in the investigation, conditioned negotiation, settlement, trial and/or defense of any Proceedings (and any appeal arising therefrom) or delayed)any claim. The Indemnifying Party may, at its own cost Parties shall cooperate with each other in any notifications to and expense, participate in, but not control, any defense or settlement information requests of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contraryinsurers. No individual representative of any Person, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party or their respective Affiliates, shall be personally liable for any Loss or Losses under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying PartyAgreement, the Indemnifying Party shall not be required except as specifically agreed to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesby said individual representative.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant In the event that the Principal Shareholders, NUBI or any other party entitled to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) Section 11.02 hereof shall choose to assert a claim for Loss or potential Loss based upon a claim by a third party (that third-party claim or assertion, a “"Third Party Claim”"), are subject to the following terms and conditions:
party seeking indemnification (a"Indemnified Party") The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) shall notify the Party from whom party against which indemnification is sought (the “"Indemnifying Party”") in writing of such claim, promptly following the occurrence of the existence event giving rise thereto, certifying that such a claim has been asserted and the basis therefor which shall be set forth in reasonable detail ("Notification").
(i) The Indemnifying Party shall acknowledge receipt of that Claim the Notification and advise the Indemnified Party in writing twenty (B20) transmit days after receipt thereof as to whether the Indemnifying Party a notice (a “agrees to such Third Party Claim Notice”) describing, in reasonable detail, and whether the nature defense of the Claim, Third Party Claim shall be undertaken by counsel of the choice of and copies at the expense of any papers served with respect to such Claimthe Indemnifying Party. Within 30 calendar days after receipt of any Claim Notice (If the “Election Period”)Indemnifying Party so agrees, the Indemnifying Party shall notify be deemed to have accepted any indemnifiable Loss suffered arising from such Third Party Claim, the Indemnified Party (A) whether defense of which has been assumed by the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such ClaimParty. If the Indemnifying Party does not notify advises the Indemnified Party within that it shall undertake the Election Period that defense of the Third Party Claim, the Indemnified Party shall deliver all the documents related to the Third Party Claim to the Indemnifying Party disputes or to its potential liability with respect to such Claimcounsel, any Damages resulting from such Claim shall be payable by after which the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense responsibility of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement)for the defense of the Third Party Claim shall cease, to file, during the Election Period, any motion, answer or other pleadings except that the Indemnified Party shall reasonably deem necessary or appropriate make available all documents, books and records in its possession related to protect its interests or those of the Third Party Claim, at no expense to the Indemnifying Party, and shall fully cooperate with counsel for the Indemnifying Party, including providing its personnel who are acquainted with the facts or the documents or books and records related to the Third Party Claim.
(bii) If the Indemnifying Party notifies advises the Indemnified Party within that the Election Period defense of the Third Party Claim will not be undertaken, either the Indemnified Party shall settle such Third Party Claim (in which case, the amount of such settlement and all attorneys' fees attendant to the achievement of such settlement shall be deemed included in any computation to determine Loss), or the Indemnified Party shall notify the Indemnifying Party of the identity of the counsel for the Indemnified Party who has been selected to defend the Third Party Claim. The Indemnifying Party shall fully cooperate with the Indemnified Party and its counsel to the extent that the Indemnifying Party elects to assume the defense has knowledge of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion facts or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) circumstances relating to the contrary, the Indemnifying Third Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have cause its counsel to be available to the right Indemnifying Party or its counsel to defend, at the sole cost and expense respond to any inquiries of the Indemnifying Party (if concerning the progress of such defense. In the event that the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently assert a claim for Loss as a result of any loss suffered by the Indemnified Party to a final conclusion in settling or settled at defending such Third Party Claim, the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that notify the Indemnifying Party shall not be liable for any in writing of such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed)claim. The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 shall pay all costs related to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) settlement or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and within thirty (30) days after a demand for the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesLoss or any component part is made.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with With respect to Damages claimed any claim, assertion or asserted against Action made or brought by any third Person that could result in a person claiming indemnification under this Agreement Claim (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third-Party Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall assume control of the defense of such Third-Party Claim with counsel of the Indemnified Party’s choosing that is reasonably deem necessary or appropriate satisfactory to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) and all parties shall apply (but not otherwise) and the cooperate in good faith in such defense. The Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party mayright, at its own cost and expense, to participate in, but not control, any in the defense or settlement of any Third-Party Claim controlled with counsel selected by it. Each of the Indemnified Party and Indemnifying Party pursuant shall reasonably cooperate with each other in connection with the defense of any Third-Party Claim, including by retaining and providing to this Section 5.4.1(b)the other parties such reasonable and relevant defense records and information to such Third Party Claim and making available employees on a mutually convenient basis for providing additional information and explanation of any material provided hereunder. Notwithstanding anything in this Section 5.4.1(b) Agreement to the contrary, the Indemnifying there shall be no settlement or agreement with respect to any Third-Party may not, Claim without the express prior written consent of the Indemnified Indemnifying Party, agree such consent not to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying final amount awarded or decided by any court, arbitrator or other Governmental Authority of the Third Party mayClaim, at its own cost and expensethe final settlement amount, participate in, but not control, any defense or in the case of a settlement of the Third Party Claim, together with any Claim controlled fees, costs and expenses incurred by the Acquired Companies in respect of the Third Party Claim, shall be indicative of the Losses for which the Indemnified Party shall be entitled to make a Claim pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contraryprovisions hereof, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required liable to bear the costs Indemnified Party for, and expenses Indemnifying Party shall be entitled to receive from Indemnified Party payment of the Indemnifying Party’s defense pursuant to aggregate amount of such Losses in the manner specified in this Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses8.3.
Appears in 1 contract
Samples: Equity Purchase Agreement (Entravision Communications Corp)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3In the event of a Third Party Claim, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditionsshall apply:
(a) The Indemnified the Claimant shall reasonably inform the Indemnifying Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) in writing of the existence Third-Party Claim in the relevant Notice of that Claim with all reasonable details and shall promptly make available to the latter and/or its counsels all relevant documentation which may be available;
(Bb) transmit the Claimant shall promptly grant and cause to grant to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature and/or its counsels access to all relevant books and records and premises and employees of the ClaimClaimant, and copies of NewCo, CE Compression, SAFE, SAFE SG or any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice Compression Subsidiary (as the “Election Period”case may be), to the extent reasonably necessary in connection with the defence of the Third Party Claim;
(c) the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability give written notice to the Indemnified Claimant as to whether or not it wishes to participate to, by its own counsels, the defence of the Third-Party under this Article 5 with respect to such Claim it remaining agreed and understood that the defence will be in any event led by the Claimant who (B1) whether the Indemnifying Party desiresshall retain, at its sole cost discretion, any decision as to the conduct of the defence and expensethe proceedings (including the execution of a settlement), to defend the Indemnified maximum extent possible under applicable Law, and (2) shall, if applicable, exercise its rights to cause NewCo, CE Compression, SAFE, SAFE SG or any Compression Subsidiary (as the case may be) to diligently and promptly manage any such Third-Party against such Claim. If , taking without delay any reasonable actions, and preparing, also through its counsels, any relevant filings, judicial or administrative acts or other documents, with due care; and (3) shall regularly (in reasonable intervals) inform the Indemnifying Party about the status of the matter and promptly notify the Indemnifying Party of all material correspondence or other actions or developments in connection with the Third-Party Claim;
(d) in the event that a firm offer is made to the Claimant, or to NewCo, CE Compression, SAFE, SAFE SG or any Compression Subsidiary (as the case may be), to settle any matter giving rise to an indemnification obligation under Section 8 or Section 9, which the Claimant, but not the Indemnifying Party, is willing to accept, the Claimant, or NewCo, CE Compression, SAFE, SAFE SG or any Compression Subsidiary (as the case may be), shall be entitled to enter into such settlement at it sole discretion; it being understood that in the event that: (i) the Indemnifying Party requests that the Claimant, or to NewCo, CE Compression, SAFE, SAFE SG or any Compression Subsidiary (as the case may be) asks for a Third Party Expert confirmation that the terms and conditions of the settlement are in their best interest, (ii) such an opinion is rendered and does not notify confirm that the Indemnified settlement is in the best interest of the above companies, then if any indemnification is due pursuant to the terms and conditions of this Agreement then such indemnification shall be limited to 50% (fifty percent) of its value, subject to the limitations set forth in Sections either 8 or 9 (as the case may be). For the avoidance of doubt it is understood between the Parties that, in case the opinion rendered confirms that the settlement is in the best interest of the Claimant, or NewCo, CE Compression, SAFE, SAFE SG or any Compression Subsidiary (as the case may be), then if any indemnification is due in accordance with the terms and conditions of this Agreement to the Claimant, or NewCo, CE Compression, SAFE, SAFE SG or any Compression Subsidiary (as the case may be) it should be paid for 100% (one hundred percent) of its value, subject to the limitations set forth in Sections either 8 or 9 (as the case may be);
(e) in the event that (x) a firm offer is made to the Claimant, or to NewCo, CE Compression, SAFE, SAFE SG or any Compression Subsidiary (as the case may be), to settle any matter giving rise to an indemnification obligation under Section 8 or Section 9, which the Indemnifying Party, but not the Claimant, is willing to accept, and (y) the Indemnifying Party within has accepted in writing its indemnification obligation under Section 8 or Section 9 (as the Election Period case may be) in relation to such Third Party Claim, then the Claimant, and NewCo, CE Compression, SAFE, SAFE SG or any Compression Subsidiary (as the case may be) shall be free and, if the Claimant is CE, LR shall exercise its rights to allow NewCo, CE Compression, SAFE, SAFE SG, or any Compression Subsidiary (as the case may be), not to enter into such settlement and to commence or continue litigation, at its/their own expense, but the Indemnifying Party’s liability shall be limited to the amount of the proposed settlement;
(f) it is also understood that, all reasonable costs and expenses incurred by the Indemnifying Party in participating to the relevant Third-Party Claim shall be borne by the Indemnifying Party. If it results that the Indemnifying Party disputes its potential liability with respect has no obligation to such Claimindemnify under Section 8 or Section 9, any Damages resulting from such Claim shall be payable costs and expenses reasonably incurred by the Indemnifying Party in connection with the defense (including advisors fees) shall be borne by the Claimant;
(g) the material failure (as it may be determined in proceedings under Section 13.8) by the Claimant to comply with any of the obligations under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of Section 10.4 shall release the Indemnifying Party (but only if the Indemnified Party is entitled to from its indemnification obligations provided under this Agreement), Agreement with respect to file, during the Election Period, any motion, answer or other pleadings that Loss referred to in the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those Notice of Claim and fro which the Indemnifying Party.Claimant has not complied with; and
(bh) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to any indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently amount due by the Indemnifying Party in relation to a final conclusion Third-Party Claim shall be paid, to the entity directly affected by the Loss in accordance with Sections 8.2(e) and/or 9.2(e) (as applicable), exclusively after the issuance of a definitive court decision or settled at order or an arbitration award deciding on the discretion Third-Party Claim, or a definitive settlement agreement on the Third-Party Claim (provided that such settlement agreement is entered into with the prior written consent of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made compliance with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(cabove provisions), and within 20 (twenty) Business Days after the Indemnified Party shall reimburse issuance of such definitive judicial judgement or arbitration award or the Indemnifying Party in full for all execution of those costs and expensessuch settlement agreement.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant (i) In the event that any written claim or demand for which an Indemnifying Party may have Liability to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or any Indemnified Party hereunder is asserted against a person claiming indemnification under this Agreement (an “or sought to be collected from any Indemnified Party”) Party by a third party (that third-party claim or assertion, a “Third-Party Claim”), are subject to the following terms and conditions:
(a) The such Indemnified Party shallshall promptly, with reasonable promptness after the but in no event more than forty-five (45) days following such Indemnified Party has notice Party’s receipt of a Third-Party Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Designated Indemnifying Party a notice of such Third-Party Claim (a “Claim Notice”) describing, in reasonable detail, ); provided that the nature of the Claim, and copies of any papers served with respect failure to such Claim. Within 30 calendar days after receipt of any timely give a Claim Notice (shall not relieve the “Election Period”)applicable Indemnifying Party of its obligations hereunder, except to the extent that the applicable Indemnifying Party shall notify have been actually and materially prejudiced by such failure and provided further that to the extent that any default interest or penalty results from or is increased by the Indemnified Party’s failure to give timely notice in accordance with this Section 9.4(a)(i), then such default interest and/or penalty will not be included in indemnifiable Losses by the Indemnifying Party.
(ii) In the event that the Designated Indemnifying Party notifies the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, that it elects to defend the Indemnified Party against such Claim. If the Indemnifying a Third-Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if defend the Indemnified Party is entitled by appropriate proceedings and shall have the sole power to indemnification under this Agreement), direct and control such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently defense at its expense with counsel selected by the Indemnifying Party (and reasonably satisfactory to a final conclusion or settled at the discretion Indemnified Party) and shall have the sole responsibility for the payment of the fees and disbursements of such counsel; provided that, prior to the Indemnifying Party in accordance with this Section 5.4.1(b). The assuming control of such defense, it shall first verify to the Indemnified Party may, at in writing within fifteen (15) days of its own cost and expense, participate in, but not control, any defense or settlement receipt of any the applicable Claim controlled by Notice that the Indemnifying Party pursuant shall be fully responsible (with no reservation of any rights, but subject to all of the defenses and rights under this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(bArticle IX) for all Liabilities and obligations relating to such Third-Party Claim and that it shall provide full indemnification to the contraryIndemnified Party with respect to such Third-Party Claim (the “Control of Defense Conditions”); and provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense if (A) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (B) the claim seeks as a form of relief any form of remedy other than monetary damages; (C) upon petition by the Indemnified Party, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree failed or is failing to any compromise vigorously prosecute or settlement which does not include an unconditional release of defend such Third-Party Claim; (D) the Indemnified Party from all Damages.
reasonably concludes, based on the advice of counsel, that the Indemnified Party and Indemnifying Party have conflicting interests with respect to such Third-Party Claim or that the Indemnified Party has one or more defenses not available to the Indemnifying Party; (cE) If the Buyer reasonably believes that such Third-Party Claim could have a material impact on the Purchased Company or its affiliates’ business operations; or (F) such Third-Party claim relates to any material customer of the Buyer, the Purchased Company or their respective Affiliates. Once the Indemnifying Party fails has made such election to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume control the defense of the Claim or if the Indemnifying a Third-Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b)Claim, then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defendparticipate in (but not control) any such defense and to employ separate counsel of its choosing at such Indemnified Party’s expense. The Indemnifying Party shall not, at without the sole cost and expense prior written consent of the Indemnifying Indemnified Party, settle, compromise or offer to settle or compromise, or admit any Liability with respect to, any Third-Party (Claim if the Indemnified Party is entitled to indemnification under this Agreement)not expressly and unconditionally released from all Liability thereunder, or if the Claim by all appropriate proceedingsterms of such settlement would result in (1) the imposition of a consent order, which proceedings shall be prosecuted diligently by injunction or decree that would restrict the Indemnified Party to a final conclusion future activity or settled at the discretion conduct of the Indemnified Party, (2) a finding or admission of a violation of Law by the Indemnified Party, or (3) any monetary Liability of the Indemnified Party that will not be paid or reimbursed by the Indemnifying Party. The Subject to the following sentence, whether or not the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnified Party shall have full control of such defense and proceedingsnot admit any Liability with respect to, including any settle, compromise or settlement of discharge such defense and proceedings, provided that Third-Party Claim without the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Designated Indemnifying Party’s express prior written consent (which shall not to be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, unless the Indemnifying Party shall not be required subject to bear any indemnification obligation hereunder. If the costs Indemnifying Party assumes the defense of a Third-Party Claim and expenses is in good faith contesting such Third-Party Claim and has satisfied and continues to satisfy the Control of Defense Conditions, 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 terms (x) solely obligates the Indemnifying Party to pay the full amount of Losses in connection with such Third-Party Claim, and (y) fully releases the Indemnified Party in connection with such Third-Party Claim and does not impose any restriction on the future activity or conduct of the Indemnified Party or any of its Affiliates.
(iii) The Indemnified Party and the Indemnifying Party shall reasonably cooperate with respect to the defense of a Third-Party Claim, including by providing reasonable access, subject to appropriate confidentiality restrictions, during normal business hours and on at least five (5) days’ prior written notice, to each other’s relevant Books and Records and employees. Such cooperation shall include the retention and (upon the Indemnifying Party’s defense pursuant request) the provision to Section 5.4.1(b) or 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’s defense pursuant Party and the Indemnifying Party shall use commercially reasonable efforts to Section 5.4.1(cavoid production of confidential information (consistent with applicable Law), and the Indemnified to cause all communications among employees, counsel and others representing any party to a Third-Party shall reimburse the Indemnifying Party in full for all Claim to be made so as to preserve any applicable attorney-client or work-product privileges. The provisions of those costs and expenses.this
Appears in 1 contract
Samples: Purchase Agreement (SciPlay Corp)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by If the Claim involves a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defendright, at its sole cost cost, expense and expense (if ultimate liability regardless of outcome, through counsel of its choice, to litigate, defend, settle, or otherwise attempt to resolve such Claim, except that the Indemnified Party is entitled may elect, at any time and at the Indemnified Party’s sole cost, expense and ultimate liability, regardless of outcome, and through counsel of its choice, to indemnification under this Agreement)litigate, defend, settle or otherwise attempt to resolve such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by without unreasonable interference with the Indemnifying Party to a final conclusion or settled at the discretion actions of the Indemnifying Party in accordance with this Section 5.4.1(b)Party. In addition:
1. The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to shall obtain the contrary, the Indemnifying Party may not, without the express prior written consent of the Indemnified PartyParty before entering into any settlement, agree compromise, admission or any acknowledgment of the validity of a third party Claim or any liability in respect thereof, which consent shall not be unreasonably withheld;
2. No Indemnifying Party shall consent to the entry of any compromise judgment or enter into any settlement which that does not include as an unconditional release of term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all Damages.liability in respect of such third party Claim; and
(c) If the 3. The Indemnifying Party fails shall not be entitled to notify the Indemnified Party within the Election Period that the Indemnifying Party elects control (but shall be entitled to assume participate at its own expense in the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwiseof) and the Indemnified Party shall be entitled to have sole control over, the right defense or settlement, compromise, admission or other acknowledgment of any third party Claim (i) as to defendwhich the Indemnifying Party fails to assume the defense within a reasonable length of time or (ii) to the extent the third party Claim seeks an order, at injunction or other equitable relief against the sole cost and expense Indemnified Party which, if successful, would have a material adverse effect on the business, financial condition, operations or properties of the Indemnified Party; provided, however, that the Indemnified Party shall make no settlement, compromise, admission or other acknowledgment which would give rise to liability on the part of the Indemnifying Party (if without the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion prior written consent of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written , which consent (which shall not be unreasonably withheld, conditioned or delayed).
4. The Indemnifying Party may, at its own cost and expense, participate in, but not control, any Parties shall cooperate with each other in the defense or settlement of any Claim controlled by the Indemnified Party pursuant third- party action related to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 Agreement and shall furnish each other all such further information that they have the right and power to the contraryfurnish as may reasonably be necessary to defend such third-party action, subject to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor reasonable confidentiality requirements of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensessupplying Parties.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, (i) If the claim or demand set forth in each case, with respect to Damages claimed the Notice of Claim is a claim or demand asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “"Third Party Claim”"), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 Company will have 15 calendar days after the date of receipt by the Company of any the Notice of Claim Notice (the “Election Period”), the Indemnifying Party shall "Notice Date") to notify the Indemnified Parties in writing of the election by the Company to defend the Third Party Claim on behalf of the Indemnified Parties, provided, however, that the Company will be entitled to assume the defense of any such Third Party Claim only if it unconditionally and irrevocably undertakes to indemnify all Indemnified Parties in respect thereof.
(Aii) whether If the Indemnifying Company elects to defend a Third Party disputes its potential liability Claim on behalf of the Indemnified Parties, the Indemnified Parties will make available to the Company and their agents and representatives all records and other materials in their possession which are reasonably required in the defense of the Third Party Claim and the Company will pay all expenses payable in connection with the defense of the Third Party Claim as they are incurred.
(iii) In no event may the Company settle or compromise any Third Party Claim without the Indemnified Parties' consent, which may not be unreasonably withheld, provided, however, that if a settlement is presented by the Company to the Indemnified Party under this Article 5 with respect Parties for approval and the Indemnified Parties withhold their consent thereto, then any amount by which the final Losses (including reasonable attorneys' fees and charges) resulting from the resolution of the matter exceeds the rejected settlement amount, plus attorneys' fees incurred to such Claim date, will be excluded from the amount covered by the indemnification provided for in this Agreement and shall be borne by the Indemnified Parties.
(Biv) whether If the Indemnifying Party desires, at its sole cost and expense, Company elects to defend a Third Party Claim, the Indemnified Parties will have the right to participate in the defense of the Third Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost Indemnified Parties' expense (and expense of without the Indemnifying Party (but only if the Indemnified Party is entitled right to indemnification for such expense under this Agreement), to fileprovided, during the Election Periodhowever, any motion, answer or other pleadings that the reasonable fees and expenses of counsel retained by the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those Parties will be at the expense of the Indemnifying PartyCompany if (A) the use of the counsel chosen by the Company to represent the Indemnified Parties would present such counsel with a conflict of interest; (B) the parties to such proceeding include both Indemnified parties and the Company and there may be legal defenses available to Indemnified Parties which are different from or additional to those available by the Company; (C) within 10 calendar days after being advised by the Company of the identity of counsel to be retained to represent Indemnified Parties, they shall have objected to the retention of such counsel for valid reasons (which shall be stated in a written notice to the Company), and the Company shall not have retained different counsel satisfactory to the Indemnified Parties; or (D) the Company shall have authorized the Indemnified Parties to retain a single separate counsel at the expense of the Company, such authorization to be made by the directors who are not designees of Purchaser or its Affiliates.
(bv) If the Indemnifying Company does not elect to defend a Third Party notifies Claim, or does not defend a Third Party Claim in good faith, the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall Parties will have the right to defendright, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree addition to any compromise other right or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall remedy it may have the right to defendhereunder, at the sole cost and exclusive expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contraryCompany, to the extent (1) the Indemnifying defend such Third Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesClaim.
Appears in 1 contract
Samples: Stock Purchase Agreement (Knowledge Capital Investment Group)
Third Party Claim. The Company Group member’s indemnification obligation pursuant If the Claim in question is a result of or is in connection with a claim by or liability to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement Third Party (an a “Indemnified PartyThird Party Claim”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditionsthen:
(a) the Purchaser shall conduct, and shall procure that the relevant Group Company conducts, the defense of the Third Party Claim diligently and in good faith using all reasonable means and defenses available to it and taking into account the interests of the Group Companies, provided that the Purchaser shall have no obligation to use all recourses and appeals available in the Third Party Claim. Upon the Sellers’ Agent’s prior written request, the Purchaser shall give, and shall procure that the relevant Group Company gives, to the Sellers’ Agent the opportunity (at its own expenses) to comment with respect to the defense of the Third Party Claim and shall take such comments into account when conducting the defense, provided that such requests are not, or, in the reasonable opinion of the Purchaser, likely to be, against the best interests of the Group Companies. The Indemnified Purchaser or the relevant Group Company shall keep the Sellers’ Agent reasonably informed of the progress of any Third Party shallClaim and its defense and shall promptly provide the Sellers’ Agent with copies of all material notices, with reasonable promptness after communications and filings (including court papers). Upon the Indemnified Sellers’ Agent’s written request, the Purchaser shall make, and shall procure that the relevant Group Company makes, any counterclaim against any Person asserting such Third Party has notice Claim or any cross-claim against any other Person which may be liable, provided that, should the Purchaser be of a the opinion that the interest of the Purchaser or the Group Companies would be better served without such counterclaim or cross-claim, such Sellers’ Agent’s written request shall cause the Sellers’ Agent to (i) fully acknowledge their liability under the Third Party Claim, (1ii) notify take control of and conduct the Third Party from whom indemnification is sought Claim at its own expenses and (iii) be fully liable (i.e. the “Indemnifying Party”limitations set forth in Articles 14.7.3 and 14.7.4 shall not apply) for any Loss that may be incurred or suffered by the Purchaser or any Group Companies in connection with such Third Party Claim ;
(b) subject to the Sellers having acknowledged their liability under such Claim, the Third Party Claim shall not be compromised, disposed of or settled without the prior written consent of the existence Sellers’ Agent, which consent may not be unreasonably withheld or delayed. Failure by the Sellers’ Agent to consent to any proposed settlement of any Third Party Claim within a period of five (5) Business Days following such proposal being notified to the Sellers’ Agent, shall cause the Sellers’ Agent to (i) take control of and conduct the Third Party Claim at its own expenses and (ii) be fully liable (i.e. the limitations set forth in Articles 14.7.3 and 14.7.4 shall not apply) for any Loss that may be incurred or suffered by the Purchaser or any Group Companies in connection with such Third Party Claim;
(c) the Sellers’ Agent shall, subject to (i) having acknowledged their liability under such Third Party Claim and (Bii) transmit to having served notice on the Indemnifying Party Purchaser, within a notice five (a “Claim Notice”5) describing, in reasonable detail, Business Days period from the nature receipt of the Claim, and copies of any papers served with respect that it desires to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume conduct the defense of the such Third Party Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is be entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost expense to take such action as it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest such Third Party Claim or liability (including, without limitation, making counterclaims or other claims against Third Parties) in the name of and expense, participate in, but not control, any defense or settlement on behalf of the relevant Group Company and to have the conduct of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate related proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion negotiations or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedingsappeals, provided that the Indemnifying Seller’s Agent shall always exercise its rights under this Article 14.5 with moderation, in good faith and taking into account the best interests of the Group Companies, and provided further that if the Sellers’ Agent elects to conduct the defense of a Third Party Claim, the limitations set forth in Articles 14.7.3 and 14.7.4 shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c)apply.
(d) Notwithstanding anything in Failure by the Purchaser to comply with the provisions of this Section 5.4.1 Article 14.5 shall have no consequence on the ability of the Purchaser to make a valid Claim, and may be sanctioned solely by the payment of damages to the contrarySellers, insofar as the latter are able to prove that such failure caused direct damages to the Sellers, and then only to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses amount of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesdamages thus established.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by If a third party (that third-party including any Competent Authority) asserts a claim or assertion, against an Indemnified Party which might result in an indemnification liability hereunder on the part of an Indemnifying Party (a “Third Party Claim”), are subject to the following terms and conditionsshall apply in addition to clause 5.3:
(a1) The the Indemnified Party shall, with reasonable promptness after as soon as reasonably practicable, notify the Indemnifying Party of any such Third Party Claim;
(2) the Indemnified Party has notice of a Claimshall, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit as soon as reasonably practicable after receipt by it, provide to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature copy of the Claim, Third Party Claim or demand and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice all time sensitive documents;
(the “Election Period”), the Indemnifying Party shall notify 3) the Indemnified Party (A) whether shall not unreasonably do anything which prejudices or may reasonably be expected to prejudice the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense ability of the Indemnifying Party to defend such Third Party Claim successfully;
(but only if 4) no settlements, acknowledgements, admissions of liability or waivers shall be made by either the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies without the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense prior written consent of the Claim, then this Section 5.4.1(bother Party (which consent shall not be unreasonably withheld or delayed); and
(5) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defendright, at its sole cost expense, to participate in but not control the negotiation, settlement or defence of the Third Party Claim, which control shall rest at all times with the Indemnified Party, unless the Indemnifying Party irrevocably assumes control, in writing, of the negotiation, settlement or defence of the Third Party Claim, in which case:
(a) the Indemnifying Party may assume such control at its expense through counsel of its choice and expense (if shall reimburse the Indemnified Party is entitled to indemnification under this Agreement), for all of the Indemnified Party’s out-of-pocket expenses incurred as a result of such Claim by all appropriate proceedings, which proceedings assumption of control; and
(b) the Indemnified Party shall be prosecuted diligently by allow the Indemnifying Party to a final conclusion participate in all negotiations and correspondence with such third party and shall conduct proceedings in respect of such Third Party Claim in accordance with the Indemnifying Party’s instructions provided that the Indemnified Party shall continue to have the right to participate in the negotiation, settlement or settled at defence of such Third Party Claim and to retain counsel to act on its behalf (provided that the discretion fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party in accordance with this Section 5.4.1(b). The consents to the retention of such counsel at its expense or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party mayand a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences), at its own cost in which case the fees and expense, participate in, but not control, any defense or settlement disbursements of any Claim controlled such counsel shall be paid by the Indemnifying Party pursuant Party).
(6) In order to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, enable the Indemnifying Party may notto properly assess the benefits of the Third Party Claim and the chances of any litigation, and to proceed with the litigation, the Indemnified Party shall, upon the Indemnifying Party’s reasonable request during normal business hours and upon reasonable notice, without undue delay furnish copies of all relevant information, grant the express written consent right to inspect the books and the documents and allow interviews of the employees of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall keep business and trade secrets and other confidential information confidential and shall not be liable use these secrets for any such compromise purpose other than that contemplated under this clause (1).
(7) If, having elected to assume control of the negotiation, settlement or settlement unless such compromise or settlement is made with defence of the Third Party Claim, the Indemnifying Party’s express written consent (which Party thereafter fails to conduct such negotiation, settlement or defence with reasonable diligence, then the Indemnified Party shall not be unreasonably withheld, conditioned or delayed). The entitled to assume such control and the Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled shall be bound by the results obtained by the Indemnified Party pursuant with respect to this Section 5.4.1(c)such Third Party Claim.
(d) Notwithstanding anything in this Section 5.4.1 8) If any Third Party Claim is of a nature such that the Indemnified Party is required by Applicable Law or any Order, to make a payment to any person with respect to the contraryThird Party Claim before the completion of settlement negotiations or related legal proceedings, to as the extent (1) case may be, then the Indemnified Party may make such payment and the Indemnifying Party has delivered a notice to shall, promptly after demand by the Indemnified Party, reimburse the Indemnified Party that for such payment. If the Indemnifying Party disputes its potential amount of any liability to of the Indemnified Party under this Article 5 and (B) the Third Party Claim in respect of which such dispute a payment was made, as finally determined, is resolved in favor less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the party to whom the payment was made, pay the amount of such difference to the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 1 contract
Samples: Agreement for the Purchase of Shares (Visteon Corp)
Third Party Claim. The Company Group member’s indemnification obligation Upon receipt by any person seeking to be indemnified pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement Article 9 (an the “Indemnified PartyIndemnitee”) by a third party of notice of any legal proceedings, (that third-party claim or assertion, each a “Claim”)) against it which has or is expected to give rise to a claim for Losses, are subject the Indemnitee shall give prompt written notice thereof (which shall be within ten (10) days after receipt by the Indemnitee of such Claim) to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) notify the Party person from whom indemnification is sought which it seeks to be indemnified (the “Indemnifying PartyIndemnitor”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing), in reasonable detail, indicating the nature of such Claim and the Claimbasis therefor; provided, and copies however, that any delay or failure by the Indemnitee to give notice to the Indemnitor shall relieve the Indemnitor of any papers served with respect its obligations hereunder only to the extent, if at all, that it is materially prejudiced by reason of such Claimdelay or failure. Within 30 calendar The Indemnitor shall have thirty (30) days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability Indemnitee’s notice to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desireselect, at its sole cost and expenseoption, to defend assume the Indemnified Party against defense of, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect Indemnitor shall undertake to compromise or defend any such Claim, any Damages resulting from such Claim it shall be payable promptly notify the Indemnitee of its intention to do so. Notwithstanding an election by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects Indemnitor to assume the defense of the such Claim, then this Section 5.4.1(b(i) shall apply (but not otherwise) and the Indemnifying Party Indemnitee shall have the right to defend, employ at its sole cost separate counsel and expense to participate in the defense of such Claim, and (if ii) the Indemnified Party is entitled to indemnification under this Agreement), Indemnitee shall have the right at any time after the Indemnitor assumes the defense of such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of such Claim if the Indemnitor subsequently determines that it does not believe the Claim is one for which the Indemnitee is entitled to indemnification, compensation or if reimbursement under this Article 9 and requests that the Indemnifying Party elects to Indemnitee assume the defense of such Claim (in which case the Indemnitee may retain the legal counsel previously retained by the Indemnitor to assist in the defense of such Claim). The Indemnitee and Indemnitor and their counsel shall cooperate fully in the compromise or defense of any Claim but fails subject to satisfy its obligations under Section 5.4.1(b)this Article 9 and keep one another informed of all developments relating to any such Claims, then this Section 5.4.1(cand provide copies of all relevant correspondence and documentation relating thereto. If an Indemnitor receiving a notice of Claim does not elect to defend such Claim within the thirty (30) shall apply (but not otherwise) and day period referred to above, the Indemnified Party Indemnitee shall have the right, in addition to any other right to defendor remedy it may have hereunder, at the sole cost and expense Indemnitor’s expense, to defend such Claim. The Indemnitee’s defense of, or participation in the defense of, any such Claim shall not in any way diminish or lessen the obligations of the Indemnifying Party (if the Indemnified Party is entitled to indemnification Indemnitor under this Agreement), Article 9. In no event may an Indemnitor or an Indemnitee settle or compromise any Claim without the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion consent of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent other (which shall consent will not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming (a) In the event any claim for indemnification under this Agreement (an “Indemnified Party”) Article VII is based on a claim asserted by a third party (that third-party claim or assertioni.e., a Person other than a party hereto or its Affiliates, or agents) (a “Third-Party Claim”), are subject the party seeking indemnification shall give prompt written notice to such other party of the Third-Party Claim, which notice shall specify in reasonable detail the basis of such claim and the facts pertaining thereto, and indicating the sections of this Agreement allegedly breached to the following terms extent determinable which are the basis for such claim and conditions:the best estimate of the amount to the extent determinable or estimable as of such notice date of the Damages that has been or may be suffered by the Indemnified Party; provided that the failure to so notify any Indemnifying Party shall not relieve such Indemnifying Party of its obligations hereunder except to the extent such failure shall have prejudiced such Indemnifying Party.
(ab) The Indemnified In the event of any Third-Party shallClaim, with reasonable promptness after the Indemnifying Party shall have the right, exercisable by written notice to the Indemnified Party has notice within thirty (30) days of receipt of a Claim, (1) notify Claims Notice to assume and conduct the Party from whom indemnification is sought (the “Indemnifying Party”) defense of the existence of that underlying Third-Party Claim and (B) transmit to with counsel selected by the Indemnifying Party a notice and reasonably satisfactory to the Indemnified Party; provided, that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim (a “Claim Notice”) describingother than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assume control of the defense, in reasonable detailwhich, notwithstanding the foregoing, shall be borne by the Indemnifying Party). Notwithstanding the foregoing, the nature Indemnifying Party shall not have the right to assume control of the Claim, and copies defense of any papers served Third-Party Claim and shall pay the reasonable fees and out-of-pocket expenses of a single counsel retained by all such Indemnified Parties with respect to such ClaimThird-Party Claim if: (i) the Indemnifying Party does not conduct the defense of the Third- Party Claim with reasonable diligence; or (ii) the Third-Party Claim seeks non-monetary, equitable or injunctive relief, (ii) alleges violations of criminal law, or (iii) includes as the named parties in any such Third-Party Claim both an Indemnified Party and an Indemnifying Party, and either a defense is available to an Indemnified Party that is not available to an Indemnifying Party or applicable ethical guidelines provide that, in either case, it would be inappropriate to have the same counsel represent both parties. Within 30 calendar days after receipt of any Claim Notice (If the “Election Period”Indemnifying Party has assumed such defense as provided in this Section 7.6(b), the Indemnifying Party shall notify the will not be liable for any legal expenses subsequently incurred by any Indemnified Party (A) whether in connection with the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to defense of such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claimclaim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying any Third-Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b7.6(b). The , the Indemnified Party may, may continue to defend such claim at its own the reasonable cost of the Indemnifying Party and expense, the Indemnifying Party may still participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the such Third-Party Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own sole cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 1 contract
Samples: Contribution and Exchange Agreement (Harbinger Group Inc.)
Third Party Claim. The Company Group member’s indemnification obligation pursuant In the event the facts giving rise to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming the claim for indemnification under this Agreement (an “Indemnified Party”) Article 7 shall involve any action or threatened claim or demand by a any third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after against the Indemnified Party has (a "Third Party Claim"), within the earlier of, as applicable, ten (10) days after receiving notice of the filing of a Claim, lawsuit or thirty (130) notify the Party from whom indemnification is sought (the “Indemnifying Party”) days after receiving notice of the existence of that a claim, demand, suit or proceeding (each a "Claim") giving rise to the claim for indemnification, the Indemnified Party shall send written notice of such Claim and (B) transmit to the Indemnifying Party a notice (a “the "Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b"). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release failure of the Indemnified Party from all Damages.
(c) If to give the Indemnifying Party fails to notify the Indemnified Party within the Election Period that Claim Notice shall not release the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification from liability under this Agreement)Article 7; provided, the Claim by all appropriate proceedingshowever, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any losses incurred by the Indemnified Party which would not have been incurred but for the delay in the delivery of, or the failure to deliver, the Claim Notice. Except as set forth below, the Indemnifying Party shall be entitled to defend such compromise Claim in the name of the Indemnified Party at his or settlement unless such compromise its own expense and through counsel of his or settlement its own choosing. The Indemnifying Party shall give the Indemnified Party notice in writing within ten (10) days after receiving the Claim Notice from the Indemnified Party in the event the Claim is made with one involving an instituted suit or proceeding, or otherwise within thirty (30) days, of his or its intent to do so. If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the Indemnified Parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s express 's request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent, which consent (which shall not be unreasonably withheld, conditioned delayed or delayed)conditioned. The Indemnified Party may elect, by notice in writing to the Indemnifying Party mayParty, to continue to participate through his or its own counsel, at his or its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice shall have the right to control the defense of the Claim with counsel reasonably acceptable to the Indemnified Party Party. In the event that the Indemnifying Party disputes its potential liability is controlling the defense of the Claim and shall have negotiated a settlement thereof, which proposed settlement is final and unconditional as to the parties thereto and contains an unconditional release of the Indemnified Party, without the Indemnified Party under this Article 5 being liable for damages of any kind or nature or being otherwise required to pay any amount of money to any third party and (B) such dispute is resolved in favor does not include the imposition of any restrictions on the part of the Indemnifying PartyIndemnified Party or require that the Indemnified Party make an admission of guilt or liability or deliver a confession of judgment, or any other non-financial obligation which, in the Indemnifying Party shall not be required to bear the costs and expenses reasonable judgment of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and renders such settlement unacceptable, the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesconsent to such settlement.
Appears in 1 contract
Samples: Intangible Asset Purchase Agreement (Home Interiors & Gifts Inc)
Third Party Claim. The Company Group member’s indemnification obligation pursuant In the event that any third party delivers notice of a claim (in Court or directly to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, the Buyer) with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement which any Seller may become obligated to indemnify Buyer pursuant to Clause 6 (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third Party Claim”), are subject the Buyer shall give notice to the following terms Seller Representative and conditionssuch Seller from whom an indemnity is sought of such a Third Party Claim by serving notice of a Claim in accordance with Clause 7.2 above and no later than ten (10) Business Days after the day when the Buyer was delivered the Third Party Claim. The provisions in Clause 7.2 above shall also apply to any Claim Notice delivered to the Seller Representative based on a Third Party Claim. Additionally, the Seller Representative may state in the Response that they (or the Sellers) will undertake the defense of the Buyer in the Third Party Claim, in which case the Buyer shall:
(a) The Indemnified promptly execute as many powers of attorney (including general xxxxxx to conduct litigation) in favor of as many attorneys and solicitors as the Seller Representative may reasonably request, provided that the Buyer may however appoint its own co counsel (at the Buyer’s expense), in which case no action will be taken, or strategy will be followed by the Seller Representative without at least consulting with the Buyer;
(b) make available to the Seller Representative on a timely basis all documents, records and other materials in the possession of the Buyer required by the Seller Representative for its use in defending the Third Party shallClaim and shall otherwise cooperate with the Seller Representative in the defense of such a claim;
(c) not have the right to, with reasonable promptness after and not take any action to, settle, adjust, accept or compromise such Third Party Claim without the Indemnified Party has notice consent of the Seller Representative; provided, however, that the Seller Representative shall not unreasonably withhold or delay such consent; and
(d) be under a duty of diligence when directing the defense of a Claim, (1) notify the Third Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit shall make all reasonable efforts to mitigate the Indemnifying Damage that may result from any such Third Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party Seller Representative (or Sellers) does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume undertake the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and Third Party Claim the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is Buyer will be entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume conduct the defense of the Third Party Claim. In this case, the Buyer undertakes to inform the Seller Representative no less frequently than on a monthly basis about the evolution of the Third Party Claim or, earlier, if there is a relevant action to be taken or a court resolution is made in relation to the same. For the avoidance of doubt, a Third Party Claim resulting from a matter described in Clause 6.2.1, 6.2.2 or 6.2.3 for which the Sellers are liable, will cause an obligation on the Sellers to indemnify the Buyer or the Company, subject to the other limitations set forth in Clause 6, as soon as a final judgment is issued on the Third Party Claim requesting a payment or a settlement is reached with the third party and the Sellers will be bound by any judgment or settlement issued on a Third Party Claim by a Court of competent jurisdiction, even if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently claim or settlement has been undertaken by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c)Buyer.
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming (a) In the event any claim for indemnification under this Agreement (an “Indemnified Party”) Article VI is based on a claim asserted by a third party (that third-party claim or assertioni.e., a Person other than a party hereto or its Affiliates, or agents) (a “Third-Party Claim”), are subject the party seeking indemnification shall give prompt written notice to such other party of the Third-Party Claim, which notice shall specify in reasonable detail the basis of such claim and the facts pertaining thereto, and indicating the best estimate of the amount to the following terms and conditions:extent determinable or estimable as of such notice date of the Damages that has been requested by the Indemnified Party; provided that the failure to so notify any Indemnifying Party shall not relieve such Indemnifying Party of its obligations hereunder except to the extent such failure shall have prejudiced such Indemnifying Party.
(ab) The Indemnified In the event of any Third-Party shallClaim, with reasonable promptness after the Indemnifying Party shall have the right, exercisable by written notice to the Indemnified Party has notice within thirty (30) days of receipt of a Claim, (1) notify Claims Notice to assume and conduct the Party from whom indemnification is sought (the “Indemnifying Party”) defense of the existence of that underlying Third-Party Claim and (B) transmit to with counsel selected by the Indemnifying Party a notice and reasonably satisfactory to the Indemnified Party; provided, that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim (a “Claim Notice”) describingother than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assumes control of the defense, in reasonable detailwhich, notwithstanding the foregoing, shall be borne by the Indemnifying Party). Notwithstanding the foregoing, the nature Indemnifying Party shall not have the right to assume control of the Claim, and copies defense of any papers served Third-Party Claim and shall pay the reasonable fees and out-of-pocket expenses of separate counsel retained by all such Indemnified Parties with respect to such ClaimThird-Party Claim if: (i) the Indemnifying Party does not conduct the defense of the Third-Party Claim with reasonable diligence; or (ii) the Third-Party Claim seeks non-monetary, equitable or injunctive relief, (ii) alleges violations of criminal law, or (iii) includes as the named parties in any such Third-Party Claim both an Indemnified Party and an Indemnifying Party, and either a defense is available to an Indemnified Party that is not available to an Indemnifying Party or applicable ethical guidelines provide that, in either case, it would be inappropriate to have the same counsel represent both parties. Within 30 calendar days after receipt of any Claim Notice (If the “Election Period”Indemnifying Party has assumed such defense as provided in this Section 4.5(b), the Indemnifying Party shall notify the will not be liable for any attorney’s fees and legal expenses subsequently incurred by any Indemnified Party (A) whether in connection with the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to defense of such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claimclaim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying any Third-Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b4.5(b). The , the Indemnified Party maymay continue to defend such claim at the reasonable cost of the Indemnifying Party, at its own cost which Indemnifying Party shall pay as expenses are incurred, and expense, the Indemnifying Party may still participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the such Third-Party Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own sole cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, (a) If any third party shall notify Purchaser or its affiliates hereto with respect to Damages claimed any matter asserted by such third party against the Company, the Surviving Corporation or asserted against the Subsidiary (hereinafter referred to as a person claiming indemnification under this Agreement (an “Indemnified PartyThird Party Claim”) which may give rise to a claim by a third party (that third-party claim or assertionPurchaser against the Holdback Shares, a “Claim”), are subject then Purchaser shall give notice to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice Stockholders Representative within 15 days of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies Purchaser becoming aware of any papers served such Third Party Claim or of facts upon which any such Third Party Claim will be based setting forth such material information with respect to such Claim. Within 30 calendar days after receipt the Third Party Claim as is reasonably available to Purchaser; provided, however, that no delay or failure on the part of Purchaser in notifying the Stockholders Representative shall relieve the Stockholders Representative and the Holdback Beneficiaries from any Claim Notice obligation hereunder unless the Stockholders Representative and the Holdback Beneficiaries are thereby materially prejudiced (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability and then solely to the Indemnified Party under this Article 5 extent of such prejudice). The notice from Purchaser to the Stockholders Representative shall set forth such material information with respect to such the Third Party Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, as is then reasonably available to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying PartyPurchaser.
(b) If Purchaser shall have the Indemnifying first right to undertake the defense and to compromise or settle any Third Party notifies the Indemnified Party within the Election Period Claim or consent to entry of any judgment in respect thereof in any manner it may deem appropriate; provide that the Indemnifying Party elects to assume Purchaser shall (i) cooperate with Stockholders Representative in the defense of any Third Party Claim; (ii), in any claim where the Claimsole remedy is monetary damages the amount of which is less than the Holdback, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party Shareholder Representative shall have the right to defend, at participate in the defense thereof and (iii) shall not settle any Third Party Claim until it has communicated to Shareholder Representative its sole cost and expense (if the Indemnified Party is entitled intent to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damagesdo so.
(c) If In all cases, the Indemnifying Party fails to notify Stockholders Representative and the Indemnified Party within the Election Period that the Indemnifying Party elects to assume Holdback Beneficiaries will reasonably cooperate with Purchaser or its affiliates in the defense of the Claim or if the Indemnifying Party elects that claim and will provide reasonable access to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b)documents, then this Section 5.4.1(c) shall apply (but not otherwise) assets, properties, books and the Indemnified Party shall have the right to defend, at the sole cost records reasonably requested by Purchaser and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 material to the contraryclaim and will make reasonably available all individuals reasonably requested by Purchaser for investigation, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 depositions and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensestrial.
Appears in 1 contract
Samples: Merger Agreement (iVOW, Inc.)
Third Party Claim. The Company Group member’s indemnification obligation pursuant (a) If the Indemnified Party seeks indemnity under this Article IX in response to Section 5.2 and Provider’s indemnification obligation pursuant a claim or Proceeding by another Person not a Party to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after then the Indemnified Party has notice of shall promptly give a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit Notice to the Indemnifying Party a notice (a “Claim Notice”) describingwithin the deadline set forth in Section 9.3(a); provided, in reasonable detailhowever, that no delay or deficiency on the nature part of the Claim, and copies Indemnified Party in so notifying the Indemnifying Party shall relieve the Indemnifying Party of any papers served liability under this Agreement except to the extent such delay or deficiency prejudices or otherwise adversely affects the rights of the Indemnifying Party with respect to such thereto.
(b) In the event of a Third Party Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify be entitled to participate in the Indemnified Party (A) whether defense thereof and, if it so chooses, assume at any time control of the Indemnifying Party disputes its potential liability defense thereof with counsel reasonably satisfactory to the Indemnified Party under this Article 5 with respect by giving to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against written notice of its intention to assume control of the defense of such Third Party Claim; provided, however, that the Indemnified Party may participate in the defense of such Third Party Claim with its own counsel at its own expense. If the Indemnifying Party does not notify the Indemnified chooses to defend or prosecute a Third Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary cooperate in the defense or appropriate to protect its interests or those prosecution of the Indemnifying PartyThird Party Claim. With respect to any Third Party Claim relating to the items separately set forth in Schedule 9.1(g), the provisions of this Section 9.4(b) supplements and shall not prejudice the provisions of Section 9.3(d).
(bc) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the The Indemnifying Party shall have not agree to any settlement of, or consent to the right to defend, at its sole cost and expense entry of any Judgment (if other than a Judgment of dismissal on the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not controlmerits without costs) arising from, any defense or settlement of any such Third Party Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express prior written consent of the Indemnified Party (such consent shall not be unreasonably delayed, withheld or made conditional by the Indemnified Party); provided, agree however, that the consent of the Indemnified Party shall not be required if the Indemnifying Party agrees in writing to pay any compromise amounts payable pursuant to such settlement or any Judgment and such settlement which does not include an or Judgment includes a full, complete and unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the further liability. The Indemnified Party shall have not agree to any settlement of, or the right to defendentry of any Judgment (other than a Judgment of dismissal on the merits without costs) arising from, at any such Third Party Claim without the sole cost and expense prior written consent of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withhelddelayed, conditioned withheld or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled made conditional by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party); provided, however, that the consent of the Indemnifying Party shall not be required in the case that Purchaser agrees to bear a settlement of, or consent to the costs and expenses entry of any Judgment, with respect to any Third Party Claim relating to the Indemnifying Party’s defense items separately set forth in Schedule 9.1(g) to the extent that such settlement or Judgment is commercially reasonable.
(d) Without limiting the foregoing, if Seller or any of its Affiliates receives a Claim Notice or Third Party Claim arising out of any litigation matter referred to in Schedule 9.1(g) that is reasonably expected to give rise to a Loss to Purchaser or any of its Affiliates (whether or not subject to indemnification by Seller pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c9.1(g)), then (i) Purchaser and its applicable Affiliates shall be entitled to participate in the Indemnified defense thereof at its and their own expense and (ii) Seller shall not settle or agree to any settlement of, or consent to the entry of any Judgment (other than a Judgment of dismissal on the merits without costs) arising from, any such Claim Notice or Third Party Claim without the prior written consent of Purchaser or its applicable Affiliates (such consent shall reimburse the Indemnifying Party in full for all of those costs and expensesnot be unreasonably delayed, withheld or made conditional by Purchaser or its applicable Affiliates).
Appears in 1 contract
Third Party Claim. The Company Group member’s (1) Within 30 days after the Indemnified Party receives notice of a claim, assertion, legal action, arbitration, investigation, or other matter or proceeding brought by any Person that is not a Party or an Affiliate of a Party and that may result in a Loss for which indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification may be sought under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third-Party Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of shall deliver a Claim, (1) notify the Claim Notice regarding such Third-Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describingParty, in reasonable detail, the nature of the Claim, and including copies of any papers served all pleadings and other information with respect to such Third-Party Claim. Within 30 calendar days after receipt The failure of any Claim Notice (the “Election Period”), Indemnified Party to so notify the Indemnifying Party shall notify the Indemnified Party (A) whether not relieve the Indemnifying Party disputes its potential of liability under this Agreement except to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period extent that the Indemnifying defense of such Third-Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable is materially prejudiced by the Indemnifying Party under this Agreementfailure to give such notice. The Indemnified Party is hereby authorized, at prior to the sole cost and expense of election by the Indemnifying Party (but only if to assume the Indemnified defense of such Third-Party is entitled to indemnification under this Agreement)Claim, to file, during the Election Period, file any motion, answer answer, or other pleadings pleading that the Indemnified Party it shall reasonably deem necessary or and appropriate to protect its interests or those of the Indemnifying Party and that is not prejudicial to the Indemnifying Party, all costs of which shall be included as Losses in respect of such claim for indemnification.
(b2) If At the election of the Indemnifying Party, which shall be made within 20 days after receipt of the Claim Notice, the Indemnified Party shall permit the Indemnifying Party notifies to assume control of the Indemnified defense of such Third-Party within Claim (to the Election Period extent only that such Third-Party Claim relates to a Loss for which the Indemnifying Party may be liable). If the Indemnifying Party elects to assume control of the defense of the Third-Party Claim, then (i) any expense incurred by the Indemnified Party thereafter for investigation or defense of the matter shall be borne by the Indemnified Party, and (ii) the Indemnified Party shall give all reasonable information and assistance, other than pecuniary, that the Indemnifying Party shall deem necessary and reasonably request to the proper defense of such Third-Party Claim. The Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in, but not control, the defense of the Third-Party Claim. If the Indemnifying Party elects to defend the Third-Party Claim under this Section 5.4.1(b14.5(b), then the Indemnifying Party shall work diligently to defend or otherwise resolve the Third-Party Claim.
(3) If the Indemnifying Party does not elect to assume control of the defense of the Third-Party Claim within the 20-day period provided in Section 14.5(b), the Indemnified Party will use its commercially reasonable efforts to defend, at the Indemnifying Party’s expense, any claim, assertion, legal action, or other matter to which such other Party’s indemnification under this Article XIV applies until the Indemnifying Party assumes such defense and, if settlement has been offered and the Indemnifying Party has not at such time admitted its obligation to defend and indemnify the Indemnified Party against such Third-Party Claim, the Indemnified Party shall apply (but not otherwise) send written notice to the Indemnifying Party of any proposed settlement and the Indemnifying Party shall have the right option for 10 days following receipt of such notice to defend, at (i) admit in writing its sole cost and expense (if obligation to indemnify the Indemnified Party from and against the liability and consent to such settlement, (ii) if liability is entitled to indemnification under this Agreement)so admitted, such Claim by all appropriate proceedingsreject, which proceedings shall be prosecuted diligently in its reasonable judgment, the proposed settlement, or (iii) deny liability. Any failure by the Indemnifying Party to a final conclusion or settled at respond to such notice shall be deemed to be an election under clause (iii) in the discretion of the immediately preceding sentence.
(4) The Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may shall not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying , enter into any judgment, compromise, settlement, or discharge with respect to the Third-Party may, at its own cost and expense, participate in, but not control, any defense or settlement Claim without the prior written consent of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
unless such judgment, compromise, settlement, or discharge (dw) Notwithstanding anything in this Section 5.4.1 to provides for the contrary, to the extent (1) payment by the Indemnifying Party has delivered a notice to of money as the sole relief for the claimant, (x) involves no finding or admission of any violation of Law or the rights of any Indemnified Party, (y) does not encumber any of the assets of any Indemnified Party (including the Assets) or agree to any restriction or condition that the Indemnifying Party disputes its potential liability would apply to the or materially adversely affect any Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the conduct of any Indemnified Party’s defense pursuant to Section 5.4.1(c)business, and the (z) includes, as a condition of any entry of judgment, settlement, compromise, discharge, or other resolution, a complete and unconditional release of each Indemnified Party shall reimburse the Indemnifying from any and all liabilities in respect of such Third-Party in full for all of those costs and expensesClaim.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Earthstone Energy Inc)
Third Party Claim. The Company Group member’s indemnification obligation pursuant Parties hereto agree to reasonably cooperate with each other in connection with the defense, negotiation or settlement of any such Third Party Claim. Notwithstanding anything in this Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject 7.05 to the following terms and conditions:
(a) The contrary, neither the Indemnifying Party nor the Indemnified Party shall, with reasonable promptness after without the written consent of the other Party, settle or compromise any Third Party Claim or permit a default or consent to entry of any judgment unless (i) the claimant provides to such other Party an unqualified release of the Indemnified and Indemnifying Parties from all liability in respect of such Third Party Claim, (ii) such settlement does not involve any injunctive relief binding upon the Indemnified Party has notice or any of a Claimits Affiliates, (1iii) notify the Party from whom indemnification is sought (the “Indemnifying Party”) such settlement does not encumber any of the existence material assets of any Indemnified Party or impose any restriction or condition that Claim would apply to or materially affect any Indemnified Party or the conduct of any Indemnified Party’s business and (Biv) transmit to such settlement does not involve any admission of liability or wrongdoing by any Indemnified Party or any of its Affiliates. Notwithstanding the Indemnifying foregoing, if a settlement offer solely for money damages is made by the applicable Third Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claimclaimant, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses writing of the Indemnifying Party’s defense pursuant willingness to accept the settlement offer and, subject to the applicable limitations of Section 5.4.1(b) or 7.04, pay the Indemnified Party’s defense pursuant to Section 5.4.1(c)amount called for by such offer, and the Indemnified Party shall reimburse declines to accept such offer, the Indemnified Party may continue to contest such Third Party Claim, free of any participation by the Indemnifying Party, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party in full for all has an obligation to pay hereunder shall be limited to the lesser of those costs and expenses(x) the amount of the settlement offer that the Indemnified Party declined to accept or (y) the aggregate Losses of the Indemnified Party with respect to such Third Party Claim.
Appears in 1 contract
Samples: Sub License, License and Asset Purchase Agreement (Prima BioMed LTD)
Third Party Claim. The Company Group member’s indemnification obligation pursuant In the event of a Third-Party Claim against any of the Indemnifiable Parties, the Claim Notice shall be delivered to Section 5.2 and Provider’s indemnification obligation pursuant the representative of the Indemnifying Party within up to Section 5.3, in each case, with respect five (5) Business Days after the Indemnifiable Party has received the Claim or on the date corresponding to Damages claimed or asserted against a person claiming indemnification under this Agreement the expiration of the first one third (an 1/3) of the legal timeframe to present defense (“Indemnified Party”) by a third party (that third-party claim or assertion, a “ClaimDefense”), are subject whichever occurs earlier. If the legal timeframe to present such Defense is shorter than five (5) days, the Claim Notice shall be delivered up to the following date corresponding to the expiration of the first half (1/2) of such legal timeframe. The Claim Notice shall be further followed by a copy of the Third-Party Claim and by any available documents related thereto. Failure to deliver the Claim Notice by the Indemnifiable Party in the form and within the periods mentioned above shall not exempt the Indemnifying Party from any obligations attributable thereto under the terms of this Agreement, unless such failure adversely affects the Defense against the relevant Third-Party Claim and conditionswithin the limit of such loss.
6.4.1. The Indemnifying Party shall respond to the Claim Notice prior to the elapse of one third (1/3) of the period available to attend conciliation or mediation hearing or to present Defense against such Third-Party Claim, informing whether the Indemnifying Party: (a) disagrees that the Third-Party Claim shall be indemnified by the Indemnifying Party, occasion on which the Parties may file the proceedings to resolve disputes provided in Section 10.13; (b) agrees that possible Loss resulting from the Third-Party Claim shall be indemnified by the Indemnifying Party, occasion on which the Indemnifying Party shall inform about its intention to (i) pay the full amount involved in the Third-Party Claim; (ii) present Defense against the Third-Party Claim; or (iii) refrain from conducting the relevant Third-Party Claim, event in which Buyer and the Companies may conduct the Defense against such Third-Party Claim, including to establish the defense strategy and select attorneys.
6.4.2. Notwithstanding the provisions above and without prejudice to Seller’s obligation to indemnify (except, however, if the sellers of M&A operation previously carried out, involving the Companies, are entitled to conduct such Third-Party Claims, event in which such right shall prevail over this Section), the Third-Party Claims listed below shall always be conducted by Buyer or by the Companies, which may establish the defense strategy and select attorneys to present defense against such Third-Party Claim:
(i) Third-Party Claims with the largest portion of the respective financial exposure not indemnifiable by Seller; and
(ii) Third-Party Claim that (a) involves issues related to the Companies’ clients, intellectual property, data protection or anti-corruption, necessarily involving Loss indemnifiable by Seller with potential payment not exceeding three hundred thousand Reais (R$ 300,000.00) (readjusted by the IPCA from this date) on the date of the filing of the relevant Third-Party Claim, or (b) involves any other issue with Loss indemnifiable by Seller with potential payment not exceeding fifty thousand Reais (R$ 50,000.00) (readjusted by the IPCA from this date) on the date of the filing of the relevant Third-Party Claim. Buyer shall solely be entitled to begin conducting one (1) Third-Party Claim provided in item “a” every period of twelve (12) months and/or two (2) Third-Party Claims provided in item “b” every period of twelve (12) months.
6.4.3. The Indemnified conduction of a Third-Party shallClaim by Seller (including for purposes of possible joint conduction) shall solely be possible if Seller expressly acknowledges, in writing, responsibility for the Loss (in whole or in part, in the event of Loss occurred in period prior to the Closing Date and persisted after the Closing Date) that may possibly result from adverse decision related to the respective Third-Party Claim.
6.4.4. The Party that is not conducting the Third-Party Claim may, at its exclusive discretion, retain attorneys or specialists to follow-up the conduction of any Third-Party Claim by the other Party and, in any event, the Party that is not conducting the Third-Party Claim shall be solely responsible for the payment of any expenses and fees resulting from such additional engagement.
6.4.5. With due regard for the provisions of Section 6.4.2, if any Third-Party Claim is filed and includes as its subject matter, claim or cause of action, simultaneously, triggering events related to the period before and after the Closing Date, the conduction of such Third-Party Claim shall constitute responsibility of the Party with reasonable promptness after greater financial exposure in the Third-Party Claim, and the costs shall be borne by the Parties, on proportional basis. The Party with greater financial exposure in the Third-Party Claim shall select the attorneys responsible for conducting the respective Third-Party Claim compatible with the nature and amount of the Third-Party Claim, and according to past practices of the Companies in relation to the amount of the fees contracted for office with similar reputation and experience.
6.4.6. The Parties agree to grant the powers of attorney and make available to one another the documents and information that may possibly be necessary to conduct the Third-Party Claims. The Parties shall assist one another providing full support reasonably requested for purposes of conducting the Third-Party Claim, including (i) providing direct contact with employees, consultants or service providers (such as accountants, attorneys and auditors) that have information, documents or data that may be useful for the defense against the Third-Party Claim; and (ii) authorizing such accountants, attorneys and auditors, or other employees, consultants or service providers, to provide documents and information and elucidations, in due course, in relation to any issues or requests presented by the other Party that may provide support to such Third-Party Claim.
6.4.7. If, at any time, the Indemnified Party has notice fails to obtain any debt clearance certificates or certificates of suspended debt/tax liability from any public body as a result of Third-Party Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify exert its best efforts, including presenting any guarantees, deposits or assets permitted by the applicable Laws, to obtain the relevant debt clearance certificates or certificates of suspended debt/tax liability, so the Indemnified Party (A) whether the Indemnifying Party disputes may regularly proceed with its potential liability to the Indemnified Party under this Article 5 with respect to such Claim activities and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claimoperations. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify obtain the Indemnified Party debt clearance certificates or certificates of suspended debt/tax liability within the Election Period that legal timeframe from the Indemnifying Party elects respective Governmental Authority to assume issue the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b)applicable certificate, then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have be entitled to take all actions applicable under the right to defend, at the sole cost and expense terms of the applicable Laws to obtain the relevant certificate, and any and all costs related to such actions shall be deemed Loss subject to indemnification by the Indemnifying Party (if Party, without prejudice to other Losses that shall be likewise indemnified by the Indemnifying Party.
6.4.8. If the Indemnified Party is entitled to indemnification under this Agreement)enrolled with any credit protection bodies, the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified bad payers’ registers or has any credit instruments protested thereagainst as a result of Third-Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying PartyClaim, the Indemnifying Party shall not be required exert its best efforts, including presenting any guarantees, deposits or assets permitted by the applicable Laws, to bear remove the costs and expenses of Indemnified Party from such registers. If the Indemnifying Party’s defense pursuant Party fails to Section 5.4.1(bregularize the relevant situation within five (5) or Business Days from receiving notice from the Indemnified Party’s defense pursuant to Section 5.4.1(c)Party in that regard, and the Indemnified Party shall reimburse be entitled to take all actions applicable under the terms of the applicable Laws to regularize the relevant situation, and any and all costs related to such actions shall be deemed Loss subject to indemnification by the Indemnifying Party in full for all of those costs and expensesParty, without prejudice to other Losses that shall be likewise indemnified by the Indemnifying Party.
Appears in 1 contract
Samples: Agreement of Purchase and Sale of Shares (CI&T Inc)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, (i) If the claim or demand set forth in each case, with respect to Damages claimed the Notice of Claim is a claim or demand asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”"THIRD PARTY CLAIM"), are the Company will have 15 calendar days after the date of receipt by the Company of the Notice of Claim (the "NOTICE DATE") to notify the Indemnified Parties in writing of the election by the Company to defend the Third Party Claim on behalf of the Indemnified Parties, PROVIDED, HOWEVER, that the Company will be entitled to assume the defense of any such Third Party Claim only if it unconditionally and irrevocably undertakes to indemnify all Indemnified Parties in respect thereof (subject to the following terms and conditions:any applicable limitations set forth in Section 6.1).
(aii) The Indemnified If the Company elects to defend a Third Party shall, with reasonable promptness after Claim on behalf of the Indemnified Party has notice of a ClaimParties, (1) notify the Party from whom indemnification is sought (Indemnified Parties will make available to the “Indemnifying Party”) Company and their agents and representatives all records and other materials in their possession which are reasonably required in the defense of the existence of that Claim and (B) transmit to the Indemnifying Third Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies the Company will pay all expenses payable in connection with the defense of the Third Party Claim as they are incurred (subject to any papers served with respect to such Claim. Within 30 calendar days after receipt of applicable limitations set forth in Section 6.1).
(iii) In no event may the Company settle or compromise any Third Party Claim Notice (the “Election Period”), the Indemnifying Party shall notify without the Indemnified Party (A) whether Parties' consent, which may not be unreasonably withheld, PROVIDED, HOWEVER, that if a settlement is presented by the Indemnifying Party disputes its potential liability Company to the Indemnified Party under this Article 5 with respect Parties for approval and the Indemnified Parties withhold their consent thereto, then any amount by which the final Losses (including reasonable attorneys' fees and charges) resulting from the resolution of the matter exceeds the sum of the rejected settlement amount plus attorneys' fees incurred to such Claim date will be excluded from the amount covered by the indemnification provided for in this Agreement and shall be borne by the Indemnified Parties.
(Biv) whether If the Indemnifying Party desires, at its sole cost and expense, Company elects to defend a Third Party Claim, the Indemnified Parties will have the right to participate in the defense of the Third Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost Indemnified Parties' expense (and expense of without the Indemnifying Party (but only if the Indemnified Party is entitled right to indemnification for such expense under this Agreement), to filePROVIDED, during the Election PeriodHOWEVER, any motion, answer or other pleadings that the reasonable fees and expenses of counsel retained by the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those Parties will be at the expense of the Indemnifying PartyCompany if (A) the use of the counsel chosen by the Company to represent the Indemnified Parties would present such counsel with a conflict of interest; (B) the parties to such proceeding include both Indemnified Parties and the Company and there may be legal defenses available to Indemnified Parties which are different from or additional to those available to the Company; (C) within 10 calendar days after being advised by the Company of the identity of counsel to be retained to represent Indemnified Parties, they shall have objected to the retention of such counsel for valid reasons (which shall be stated in a written notice to the Company), and the Company shall not have retained different counsel satisfactory to the Indemnified Parties; or (D) the Company shall have authorized the Indemnified Parties to retain a single separate counsel at the expense of the Company, such authorization to be made by the directors who are not designees of Purchaser or its Affiliates.
(bv) If the Indemnifying Company does not elect to defend a Third Party notifies Claim, or does not defend a Third Party Claim in good faith, the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall Parties will have the right to defendright, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree addition to any compromise other right or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall remedy it may have the right to defendhereunder, at the sole cost and exclusive expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contraryCompany, to the extent (1) the Indemnifying defend such Third Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesClaim.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, 5.7.1. Where an Indemnified Party has received Notice of any Claim or becomes aware of any matter which may result in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement Claim from any other Person (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditions:
(a) The such Indemnified Party shallshall within 30 (thirty) days of receiving such Notice or becoming aware of any Third Party Claim, with reasonable promptness after the Indemnified Party has give written notice of a Claim, (1) notify the such Third Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice in reasonable detail in light of the circumstances then known to the Indemnified Party (a “Third Party Claim Notice”) describing, in reasonable detail, ); provided that the nature failure of such Indemnified Party to provide such notice shall not relieve the Indemnifying Party of its obligations under Clause 5 of this Agreement.
5.7.2. Upon receipt of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Third Party Claim Notice (the “Election Period”)Notice, the Indemnifying Party shall notify be obligated to undertake necessary legal actions to defend the Indemnified Party (A) whether Claim or take such action as may be best suitable in the Indemnifying Party disputes its potential liability circumstances with counsel reasonably satisfactory to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desiresParty, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If ’s sole expense. Notwithstanding the Indemnifying Party notifies foregoing, the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, (i) at its own cost and expense, retain separate counsel to participate in, but not control, in such defence or any defense negotiations or settlement of any Claim controlled by thereunder or (ii) in the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If event the Indemnifying Party fails to notify assume such defense within the period set out in Clause 5.7.3 (i) below, the Indemnified Party within may assume the Election Period that defense or compromise such Third Party Claim by itself, in which case: (a) the Indemnifying Party elects to assume shall remain liable for the defense costs and expenses of the such Third Party Claim or if the Indemnifying Party elects to assume the defense including all court costs and payment of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(cany interim amounts; (b) shall apply (but not otherwise) and the Indemnified Party shall have the right to defendcontest, at settle, compromise or otherwise dispose of such Third Party Claim without the sole cost and expense consent of the Indemnifying Party.
5.7.3. The Indemnifying Party shall make the indemnity payment in cash (or such other manner agreed in writing between the Indemnified Party and Indemnifying Party) to the Indemnified Party upon occurrence of earlier of the following: (i) the Indemnifying Party failing to assume defence within 10 (ten) days from the receipt of the Third Party Claim Notice or such other period within which such defense ought to be assumed to comply with requirements mandated by the third party claimant’s notice (where the third party claimant is a Governmental Authority) or otherwise as required under Applicable Law; or (ii) the Indemnifying Party having assumed the defence of the Third Party Claim, where a payment obligation under a Third Party Claim becomes due and payable including pursuant to a judgement, order by any Governmental Authority or arbitral award, in each case, which is not subject to any stay or other legal suspension or postponement, or a settlement or compromise having been consummated. Provided however that during the process of defense of the Third Party Claim, if the Indemnified Party is entitled required to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party incur any costs/expenses (including but not limited to pursuant to a final conclusion notice from any Governmental Authority or settled at interim order passed by a court of law requiring the discretion payment of whole or in part of the Indemnified Party. The Indemnified Third Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayedClaim). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required immediately upon receipt of a notice from the Indemnified Party in this regard, remit the said amounts to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant , subject to Section 5.4.1(c)receipt of documents evidencing such amounts being payable, and or otherwise discharge such Third Party Claim (as per the instructions of the Indemnified Party shall reimburse the Party).
5.7.4. The Indemnifying Party agrees that it will not, without the prior written consent of the Indemnified Party: (i) make any payment to the relevant third party; (ii) consent to the entry of any judgment; (iii) enter into any settlement, with respect to any such Third Party Claim; and/or (iv) make any filings or written submission, whether independently or in full for all of those costs and expensesresponse to any request or requirement to make such submission with any other third party including a Governmental Authority, with respect to the Third Party Claim.
Appears in 1 contract
Samples: Subscription Agreement
Third Party Claim. The Company If the Group member’s indemnification obligation pursuant Companies or the Purchaser are sued or threatened to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) be sued by a third party (that third-party claim including without limitation any government agencies or assertion, a “Claim”), if the Group Companies or the Purchaser are subject to any audit or examination by any tax authority (hereinafter "Third Party Claim") which may give rise to a Purchaser Claim the following terms Purchaser shall give the Sellers prompt notice (in no event later than twenty (20) Business Days after becoming aware of such Third Party Claim) of such Third Party Claim. Subject to statutory and conditions:
(a) The Indemnified contractual confidentiality obligations, the Purchaser shall ensure that the Sellers shall be provided with all materials, information and assistance relevant in relation to the Third Party shall, with reasonable promptness after Claim in each case reasonably necessary to evaluate the Indemnified Third Party has notice of a Claim, (1) notify be given reasonable opportunity to comment or discuss with Purchaser any measures which Sellers propose to take or to omit in connection with the Third Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and in particular Sellers shall be given reasonable opportunity to comment on, participate in, and review any reports and all relevant audits or other measures and receive without undue delays copies of any papers served with respect to such Claim. Within 30 calendar days after receipt all relevant orders (Bescheide) of any Claim Notice (authority, provided, however, that in cases where the “Election Period”)above rights are limited by contractual confidentiality obligations, the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party Sellers shall have the right to defend, at its sole cost and expense (if appoint a professional advisor unrelated to any of the Indemnified Party is Sellers or their affiliates who shall be granted access to the confidential information on the basis that the advisor shall only be entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings inform the Sellers on an abstract basis about the relevant findings in a way that the confidentiality obligation will not be breached. No admission of liability shall be prosecuted diligently by made for or on behalf of Purchaser or the Indemnifying Group Companies and the Third Party to a final conclusion Claim shall not be compromised, disposed of or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express prior written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (Sellers which shall not be unreasonably withheld. Further, conditioned the Sellers shall be entitled at their own discretion and costs to take such action (or delayed). The Indemnifying cause the Purchaser or the Group Companies to take such action) as shall be necessary to defend against such Third Party mayClaim (including making counter claims or other claims against Third Parties) in the name of and on behalf of the Purchaser or the Group Companies concerned and the Purchaser will give and cause the Group Companies to give, at subject to them being paid all reasonable out-of-pocket costs and expenses, all such information and assistance as described above including access to premises and personnel and including the right to examine and copy or photograph any asset, accounts, documents and records for the purpose of defending against any such claim or liability as the Sellers or its own cost professional advisors may reasonably request in each case if and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) that actions set forth in this sentence will not adversely affect the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying PartyPurchaser’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesGroup Companies legitimate interests.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shallagrees to give the Indemnifying Party notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with reasonable promptness the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice shall not affect the indemnification provided hereunder, except to the extent the Indemnifying Party shall have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party shall deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, copies of all material notices and documents (including court papers) received by the Indemnified Party has notice of relating to the Third Party Claim.
(b) (i) With respect to a Third Party Claim, (1) notify the Indemnifying Party from whom indemnification will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is sought (reasonably likely to materially and adversely affect the “Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party shall have notified the Indemnifying Party”) Party of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, condition set forth in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”)preceding sentence, the Indemnifying Party shall have sixty (60) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party (A) whether of its election to assume the Indemnifying defense of such Third Party disputes its potential liability to Claim. All Losses incurred by the Indemnified Party under this Article 5 with respect prior to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable assumption by the Indemnifying Party under this Agreement. The Indemnified of the defense of a Third Party is hereby authorized, at the sole cost and expense of Claim shall be reimbursed by the Indemnifying Party (but only if to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party is entitled to indemnification under this Agreement)from, to file, during the Election Period, any motion, answer against and in respect of Losses incurred or other pleadings that suffered by the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Election Defense Notice Period that the Indemnifying Party it elects to assume the defense of the defend such Third Party Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party it shall have the to right to defend, so defend at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement)expense, such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently with counsel selected by the Indemnifying Party that is reasonably acceptable to a final conclusion or settled at the discretion of Indemnified Party. Once the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume has duly assumed the defense of the Claim or if the Indemnifying a Third Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b)Claim, then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party, subject to the Indemnifying Party's right to defend, at control the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Partydefense. The Indemnified Party shall have full control of participate in any such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue shall not have determined that representation of both parties by the same counsel would be liable for any such compromise inappropriate due to actual or settlement unless such compromise potential differing interests between them or settlement is made 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’s express written consent Party in respect thereof or (which shall not be unreasonably withheld, conditioned or delayed). The B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party mayhas failed to diligently pursue a Third Party Claim it has assumed, at its own cost and expensein the case of (A) or (B), participate in, but not control, any defense or settlement of any Claim controlled all such expenses incurred by the Indemnified Party pursuant in connection with such participation shall be borne by the Indemnifying Party. Each Party shall reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation shall include the retention and, upon the Indemnifying Party's request, the provision to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice of records and information which are reasonably relevant to the Indemnified such Third Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c)Claim, and the Indemnified Party shall reimburse the Indemnifying Party in full for all making employees available on a mutually convenient basis to provide additional information and explanation of those costs and expensesany material provided hereunder.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3Promptly after receipt by the Buyer or the Parent of notification of the assertion, in each caseor possible assertion, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim of any claim, action, suit, proceeding or assertion, a “Claim”), are subject demand with respect to which indemnification shall or may be claimed by the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after Buyer or the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought Parent pursuant to this Section 6 (the “Indemnifying PartyThird Party Claim”) of (such recipient being referred to hereinafter as the existence of that “Indemnitee”) the Indemnitee shall give written notice describing the Third Party Claim and in reasonable detail (B) transmit to the Indemnifying Party a notice (a an “Claim Indemnity Notice”) describingto the other party (herein, the “Indemnitor”). Failure by the Indemnitee to send the Indemnity Notice shall not release the Indemnitor from its obligations hereunder except to the extent that the failure to send the Indemnity Notice prejudices the rights of the Indemnitor. The Indemnitor shall, at its option, have full authority to defend any such claim, action, suit, proceeding or demand, in the name of such Indemnitee or otherwise as the Indemnitor shall elect utilizing counsel reasonably acceptable to the Indemnitee, unless (i) the Indemnitee reasonably objects to such assumption on the ground that counsel for such Indemnitor cannot represent both the Indemnitee and the Indemnitor because such representation would be reasonably likely to result in a conflict of interest or because there may be defenses available to the Indemnitee that are not available to such Indemnitor, (ii) the Indemnitor is not capable (by reason of insufficient financial capacity, bankruptcy, receivership, liquidation, managerial deadlock, managerial neglect or similar events) of maintaining a reasonable defense of such action or proceeding, (iii) the action or proceeding seeks injunctive or other equitable relief against the Indemnitor, or (iv) the amount in controversy exceeds the amount for which the Indemnitor is liable under this Section 6.2. The Indemnitor shall not adjust, compromise or settle any such claim, action, suit, proceeding or demand without the written consent of the Indemnitee, which consent shall not be unreasonably withheld. As to any Third Party Claim the defense of which has been assumed by the Indemnitor, (i) the Indemnitee shall cooperate fully in such defense as and to the extent reasonably requested by the Indemnitor (such cooperation shall include the retention and, upon the Indemnitor’s request, the provision to the Indemnitor of records and information that are reasonably relevant to such claim or demand and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder) and (ii) the Indemnitor shall not, subsequent to such assumption, be liable for any legal expenses incurred by the Indemnitee. In the event of any claim under this Section 6 for indemnification (whether or not in connection with a Third Party Claim), the Indemnitee shall promptly advise the Indemnitor in writing, in reasonable detail, the nature of the Claim, amount and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent circumstances surrounding said claim (which notice shall not also be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant deemed to this Section 5.4.1(cbe an Indemnity Notice).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (Healthtronics Surgical Services Inc)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, (i) If any third party shall notify any Indemnified Party in each case, writing with respect to Damages claimed or asserted against any matter involving a person claiming indemnification under this Agreement (an “Indemnified Party”) claim by a such third party (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditions:
(a) The which such Indemnified Party shallbelieves would give rise to a claim for indemnification against the Indemnifying Party under this Section 12, with reasonable promptness after then the Indemnified Party has shall promptly following receipt of notice of a Claim, such claim (1i) notify the Indemnifying Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim thereof in writing and (Bii) transmit to the Indemnifying Party a written notice (a “Claim Notice”) describing, describing in reasonable detail, detail the nature of the Third Party Claim, and copies a copy of any all papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice claim (the “Election Period”if any), and the basis of the Indemnified Party’s request for indemnification under this Agreement. Notwithstanding the foregoing, no failure or delay in providing such notice shall constitute a waiver or otherwise modify the Indemnified Party’s right to indemnity hereunder, except to the extent that the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to have been prejudiced by such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claimfailure or delay. If the Indemnifying Party does not notify the Indemnified Party in writing within the Election Period thirty (30) days from receipt of such Claim Notice that the Indemnifying Party disputes its potential liability such claim for indemnification under this Agreement, the Indemnifying Party shall be deemed to have accepted and agreed with such claim for indemnification under this Agreement.
(ii) Upon receipt of a Claim Notice with respect to such a Third Party Claim, the Indemnifying Party shall have the right to assume the defense of any Damages resulting from Third Party Claim by, within thirty (30) days of receipt of the Claim Notice, notifying the Indemnified Party in writing that the Indemnifying Party elects to assume the defense of such Claim shall be payable Third Party Claim, and upon delivery of such notice by the Indemnifying Party, the Indemnifying Party under shall have the right to fully control and settle the proceeding; provided, that any such settlement or compromise shall be permitted hereunder only with the written consent of the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim if (i) the Third Party Claim relates to or arises in connection with any criminal action, (ii) the Third Party Claim seeks an injunction or equitable relief against any Indemnified Party, (iii) the Third Party Claim is or would reasonably be expected to result in Losses in excess of the amounts available for indemnification pursuant to Section 12.5 or (iv) the Indemnifying Party has not acknowledged that such Third Party Claim is subject to indemnification pursuant to this AgreementSection 12. The If the Indemnifying Party assumes the defense of a Third Party Claim pursuant to this Section 12.3(ii), the Indemnifying Party shall conduct such defense in good faith.
(iii) If requested by the Indemnifying Party, the Indemnified Party is hereby authorizedshall, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement)Party, to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall cooperate reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If with the Indemnifying Party notifies the Indemnified and its counsel in contesting any Third Party within the Election Period that Claim which the Indemnifying Party elects to assume contest, including in connection with the defense making of any related counterclaim against the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and person asserting the Indemnifying Third Party Claim or any cross complaint against any person. The Indemnified Party shall have the right to defendreceive copies of all pleadings, notices and communications with respect to any Third Party Claim, other than any privileged communications between the Indemnifying Party and its counsel, and shall be entitled, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, to retain separate co-counsel and participate in, but not control, any defense or settlement of any Third Party Claim controlled assumed by the Indemnifying Party pursuant to this Section 5.4.1(b12.3(ii). Notwithstanding anything in this Section 5.4.1(b.
(iv) to In the contrary, event of a Third Party Claim for which the Indemnifying Party may notelects not to assume the defense, without fails to make such an election within the express written consent thirty (30) days of the Indemnified Party, agree Claim Notice or otherwise fails to any compromise or settlement which does not include an unconditional release continue the defense of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify reasonably and in good faith, the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expenseoption, participate indefend, but not controlsettle, any defense compromise or settlement pay such action or claim at the expense of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to Party; provided that any such settlement or compromise shall be permitted hereunder only with the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor written consent of the Indemnifying Party, the Indemnifying Party which consent shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) unreasonably withheld or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesdelayed.
Appears in 1 contract
Third Party Claim. (a) Upon obtaining knowledge thereof Purchaser shall promptly notify the Vendor in writing of (a) any claim or demand; or (b) any assessment or reassessment Taxes, which the Purchaser has determined has given or could give rise to a right of indemnity from the Vendor under this Agreement. In the case of a Tax Reassessment, the Purchaser shall notify the Vendor thereof no later than ten (10) days following the receipt of same. The Company Group member’s indemnification obligation failure by the Purchaser to give such notice (and within the required delay) shall not relieve the Vendor from any Liability they shall otherwise have pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) except to the extent the Vendor is actually materially prejudiced by such failure of notice, including in the case of a Tax Reassessment, sufficient time to object to same. If such claim or demand relates to a claim or demand asserted by a third party against the Purchaser or the Corporation or Glutino USA (that third-party claim or assertion, a “Third Party Claim”), are subject the Vendor shall have the right to defend the same at its own cost and expense with counsel of its own selection (so long as such counsel is reasonably acceptable to the following terms and conditions:
Purchaser) if within ten (a10) The Indemnified days after receiving written notice from the Purchaser of the Third Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit Vendor delivers written notice to the Indemnifying Purchaser of its intention to assume and defend such Third Party a notice Claims, provided that: (a “i) the Purchaser shall at all times have the right to fully participate in the defence with counsel of its choosing at its own expense; (ii) the Third Party Claim Notice”seeks only monetary damages and does not seek any injunctive or other relief against the Purchaser or any of its Affiliates, including the Corporation or Glutino USA; (iii) describing, the Vendor acknowledges in reasonable detail, writing its obligation to indemnify and hold the nature of the Claim, and copies of any papers served Purchaser Indemnified Parties harmless with respect to such the Third Party Claim. Within 30 calendar days after receipt of any Claim Notice ; and (iv) counsel chosen by the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability Vendor is satisfactory to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desiresPurchaser, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Partyacting reasonably.
(b) If such claim or demand relates to an assessment or reassessment of Taxes against the Indemnifying Party notifies Purchaser or the Indemnified Party within Corporation or Glutino USA or any action by a Taxing Authority as a result of which Taxes are claimed against the Election Period that foregoing (each a “Tax Reassessment”), the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party Vendor shall have the right to defend, at its sole cost and expense (if defend the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, same at its own cost and expense, participate in, but not control, any defense or settlement expense with counsel of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) its own selection (so long as such counsel is reasonably acceptable to the contraryPurchaser) if within ten (10) days after receiving written notice from the Purchaser of the Tax Reassessment, the Indemnifying Party may not, without Vendor delivers written notice to the express written consent Purchaser of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects its intention to assume and defend such Tax Reassessment, provided that: (i) the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) Purchaser shall apply (but not otherwise) and the Indemnified Party shall at all times have the right to defend, at fully participate in the sole cost and expense defence with counsel of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, its choosing at its own cost expense; (ii) the Vendor acknowledges in writing its obligation to indemnify and expense, participate in, but not control, any defense or settlement of any Claim controlled hold the Purchaser Indemnified Parties harmless with respect to the Tax Reassessment; and (iii) counsel chosen by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 Vendor is satisfactory to the contraryPurchaser, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesacting reasonably.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by In case Purchaser becomes aware of a third party (that third-party claim or assertionclaim, a “Claim”), are subject to the following terms and conditionsPurchaser shall:
(a) The Indemnified Party shall, with reasonable promptness as soon as reasonably practicable and in any event within sixty (60) days after the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies date Purchaser became aware of any papers served with respect circumstance giving rise to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”)a third party claim, the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability give notice thereof to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.Sellers;
(b) If subject to Sellers acknowledging in writing their indemnification obligation and agreeing to hold Purchaser harmless from and against the Indemnifying Party notifies entirety of the Indemnified Party Loss relating to such third party claim, not make any admission of liability, agreement or compromise with any person, body or authority in relation thereto, without obtaining the prior consent of Sellers (such consent not to be unreasonably withheld);
(c) subject to Sellers acknowledging in writing their indemnification obligation and agreeing to hold Purchaser harmless from and against the entirety of the Loss relating to such third party claim, in any action resist, defend and appeal such claim in the reasonable interest of Sellers;
(d) give Sellers, or Sellers’ duly authorised representatives, reasonable access to the personnel of Purchaser and to any relevant premises, accounts, documents and records within their respective power, to enable Sellers, or Sellers’ duly authorised representatives, to examine such claim, premises, accounts, documents and records and to take copies or photocopies thereof;
(e) allow, if requested by Sellers, any negotiation, dispute or litigation relating to such third party claim to be handled by Sellers at Sellers’ costs, provided, however, that should Sellers according to Purchaser’s reasonable and well-founded opinion fail or be likely to fail to properly handle such negotiation, dispute or litigation in the Election Period that reasonable interest of Purchaser, Purchaser shall have the Indemnifying Party elects right, at its discretion, to assume control of such action; and
(f) if any of Sellers have made any payment to Purchaser as a settlement of any claim and Purchaser has the defense right to recover from any third party any amount payable as a result of facts or circumstances forming the basis of such claim, then Purchaser shall on its sole discretion either assign that right to Sellers or pursue the said recovery at the direction and reasonable cost of the Claimrespective Sellers and pass any monies or property recovered over to Sellers. Notwithstanding Section 9.4 (a)-(f), then this Section 5.4.1(bwith respect to any third party claim for Taxes: (i) shall apply (but not otherwise) and the Indemnifying Party shall Sellers only have the right to defend, at its sole cost and expense (control such claim if the Indemnified Party is entitled it solely relates to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party Taxes with respect to a final conclusion any taxable year that has ended or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) taxable period related to the contrary, time period prior to the Indemnifying Party may not, Closing Date; (ii) Sellers shall not consent to any settlement or compromise of such claim without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedingsPurchaser, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned withheld or delayed). The Indemnifying Party may; (iii) Sellers or Sellers’ Representatives, at its own cost as the case may be, shall keep Purchaser fully and expensetimely informed with respect to the commencement, participate in, but not control, any defense or settlement status and nature of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 such claim; and (Biv) such dispute is resolved Sellers shall, in favor of the Indemnifying Partygood faith, the Indemnifying Party shall not be required allow Purchaser to bear the costs and expenses of the Indemnifying Party’s defense pursuant make comments to Section 5.4.1(b) Sellers or the Indemnified Party’s defense pursuant to Section 5.4.1(c)Sellers’ Representative, and regarding the Indemnified Party shall reimburse the Indemnifying Party conduct of or positions taken in full for all of those costs and expensesany such proceeding.
Appears in 1 contract
Samples: Share Purchase Agreement (American Superconductor Corp /De/)
Third Party Claim. The Company Group member’s indemnification obligation pursuant In the event that Seller or Buyer shall choose to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed assert a claim for Loss or asserted against potential Loss based upon a person claiming indemnification under this Agreement (an “Indemnified Party”) claim by a third party (that third-party claim or assertion, a “"Third Party Claim”"), are subject to the following terms and conditions:
party seeking indemnification (a"Indemnified Party") The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) shall notify the Party from whom party against which indemnification is sought (the “"Indemnifying Party”") in writing of such claim, promptly following the occurrence of the existence event giving rise thereto, certifying that such a claim has been asserted and the basis therefor which shall be set forth in reasonable detail ("Notification").
(i) The Indemnifying Party shall acknowledge receipt of that Claim the Notification and advise the Indemnified Party in writing twenty (B20) transmit days after receipt thereof as to whether the Indemnifying Party a notice (a “agrees to such Third Party Claim Notice”) describing, in reasonable detail, and whether the nature defense of the Claim, Third Party Claim shall be undertaken by counsel of the choice of and copies at the expense of any papers served with respect to such Claimthe Indemnifying Party. Within 30 calendar days after receipt of any Claim Notice (If the “Election Period”)Indemnifying Party so agrees, the Indemnifying Party shall notify be deemed to have accepted any Indemnifiable Loss suffered arising from such Third Party Claim, the Indemnified Party (A) whether defense of which has been assumed by the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such ClaimParty. If the Indemnifying Party does not notify advises the Indemnified Party within that it shall undertake the Election Period that defense of the Third Party Claim, the Indemnified Party shall deliver all the documents related to the Third Party Claim to the Indemnifying Party disputes or to its potential liability with respect to such Claimcounsel, any Damages resulting from such Claim shall be payable by after which the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense responsibility of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement)for the defense of the Third Party Claim shall cease, to file, during the Election Period, any motion, answer or other pleadings except that the Indemnified Party shall reasonably deem necessary or appropriate make available all documents, books and records in its possession related to protect its interests or those of the Third Party Claim, at no expense to the Indemnifying Party, and shall fully cooperate with counsel for the Indemnifying Party, including providing its personnel who are acquainted with the facts or the documents or books and records related to the Third Party Claim.
(bii) If the Indemnifying Party notifies advises the Indemnified Party within that the Election Period defense of the Third Party Claim will not be undertaken, either the Indemnified Party shall settle such Third Party Claim (in which case, the amount of such settlement and all attorneys' fees attendant to the achievement of such settlement shall be deemed included in any computation to determine Loss), or the Indemnified Party shall notify the Indemnifying Party of the identity of the counsel for the Indemnified Party who has been selected to defend the Third Party Claim. The Indemnifying Party shall fully cooperate with the Indemnified Party and its counsel to the extent that the Indemnifying Party elects to assume the defense has knowledge of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion facts or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) circumstances relating to the contrary, the Indemnifying Third Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have cause its counsel to be available to the right Indemnifying Party or its counsel to defend, at the sole cost and expense respond to any inquiries of the Indemnifying Party (if concerning the progress of such defense. In the event that the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently assert a claim for Loss as a result of any loss suffered by the Indemnified Party to a final conclusion in settling or settled at defending such Third Party Claim, the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that notify the Indemnifying Party shall not be liable for any in writing of such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed)claim. The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 shall pay all costs related to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) settlement or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and within thirty (30) days after a demand for the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesLoss or any component part is made.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant In the event the facts giving rise to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming the claim for indemnification under this Agreement (an “Indemnified Party”) Article 8 shall involve any action or threatened claim or demand by a any third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after against the Indemnified Party has (a "Third Party Claim"), within the earlier of, as applicable, ten (10) days after receiving notice of the filing of a Claim, lawsuit or thirty (130) notify the Party from whom indemnification is sought (the “Indemnifying Party”) days after receiving notice of the existence of that a claim, demand, suit or proceeding (each a "Claim") giving rise to the claim for indemnification, the Indemnified Party shall send written notice of such Claim and (B) transmit to the Indemnifying Party a notice (a “the "Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b"). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release failure of the Indemnified Party from all Damages.
(c) If to give the Indemnifying Party fails to notify the Indemnified Party within the Election Period that Claim Notice shall not release the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification from liability under this Agreement)Article 8; provided, the Claim by all appropriate proceedingshowever, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any losses incurred by the Indemnified Party which would not have been incurred but for the delay in the delivery of, or the failure to deliver, the Claim Notice. Except as set forth below, the Indemnifying Party shall be entitled to defend such compromise Claim in the name of the Indemnified Party at his or settlement unless such compromise its own expense and through counsel of his or settlement its own choosing. The Indemnifying Party shall give the Indemnified Party notice in writing within ten (10) days after receiving the Claim Notice from the Indemnified Party in the event the Claim is made with one involving an instituted suit or proceeding, or otherwise within thirty (30) days, of his or its intent to do so. If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the Indemnified Parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s express 's request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent, which consent (which shall not be unreasonably withheld, conditioned delayed or delayed)conditioned. The Indemnified Party may elect, by notice in writing to the Indemnifying Party mayParty, to continue to participate through his or its own counsel, at his or its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice shall have the right to control the defense of the Claim with counsel reasonably acceptable to the Indemnified Party Party. In the event that the Indemnifying Party disputes its potential liability is controlling the defense of the Claim and shall have negotiated a settlement thereof, which proposed settlement is final and unconditional as to the parties thereto and contains an unconditional release of the Indemnified Party, without the Indemnified Party under this Article 5 being liable for damages of any kind or nature or being otherwise required to pay any amount of money to any third party and (B) such dispute is resolved in favor does not include the imposition of any restrictions on the part of the Indemnifying PartyIndemnified Party or require that the Indemnified Party make an admission of guilt or liability or deliver a confession of judgment, or any other non-financial obligation which, in the Indemnifying Party shall not be required to bear the costs and expenses reasonable ASSET PURCHASE AGREEMENT - PAGE 26 judgment of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and renders such settlement unacceptable, the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesconsent to such settlement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Home Interiors & Gifts Inc)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against If the Claim originates from a person claiming indemnification under this Agreement (an “Indemnified Party”) claim by a third party Third Party (that third-party claim or assertion, a the “Third Party Claim”), are subject then:
(i) no admission of liability (whether express or implied, including by way of inaction to make counterclaims or make any appeal or use any recourse) shall be made by or on behalf of the Buyer or any of the Companies, and the claim shall not be disposed of or settled without the prior written consent of the Sellers or the Guarantors (such consent not to be unreasonably withheld or delayed);
(ii) provided that the Third Party Claim (i) relates to a matter which would entitle the Buyer to make a Claim in relation to a breach of Article 9.11 and/or under Article 12.2, and/or (ii) was initiated by a Governmental Authority in Senegal, Ivory Coast or Monaco (as the case may be), the Guarantors may elect to conduct the defense of the Third Party Claim; provided further that in the event that at any point in time (including after the Sellers have issued a Take Over notice as provided in (iv) below), the Third Party Claim involves application of Anti-Corruption Laws, the Take over Notice shall be deemed to have been cancelled and the Sellers shall no longer be entitled to conduct the defense of the Third Party Claim;
(iii) if the Sellers or the Guarantors have not elected to conduct the defense of the Third Party Claim in accordance with paragraph (iv) below, the Buyer shall conduct, and shall procure that the concerned Company conducts, the defense of the Third Party Claim diligently and in good faith using all means and defenses available to it. Upon the Sellers or Guarantors’ request, the Buyer shall give, and shall procure that the relevant Company gives, to the following terms Sellers or the Guarantors and conditionstheir advisers the opportunity to comment with respect to the defense of the Third Party Claim and shall act in accordance with the Sellers or Guarantors’ reasonable requests with respect to the conduct of the defense of the claim;
(iv) provided that the conditions set forth in (ii) above are met, at the option and upon notice (a “Take Over Notice”) of the Guarantors, the Buyer shall permit the Guarantors to assume the defense of any Third Party Claim and any litigation or proceeding resulting therefrom notably by causing the relevant Company to retain lawyers and other professional advisers and act as per the Sellers or Guarantors’ instructions as far as the defense of such Third Party Claim is concerned, and to take such action as the Guarantors’ shall deem reasonably necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest such claim or liability (including, without limitation, making counterclaims or other claims against third party), provided that the Buyer may participate in such defense at the Buyer’s expense by being given the opportunity to comment with respect to the defense of the Third Party Claim.
(v) The Party which assumes the defense of any Third Party Claim shall:
(a) The Indemnified permit the other Party’s Representative and his/its advisers timely and reasonable access during normal office hours to relevant employees, premises, documents and records (including the right to take copies (subject, as regards the Sellers/Guarantors, to signature of appropriate confidentiality agreements) at such Party’s expense of such documents and records) for the purposes of investigating the Third Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit enabling the other Party to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of take any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under action permitted by this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.12;
(b) If keep the Indemnifying other Party notifies promptly and effectively informed of all material developments in relation to the Indemnified Third Party within Claim and consult with the Election Period that other Party’s Representative concerning any material decisions required or proposed to be made in relation to the Indemnifying Third Party elects Claim, and take into account the other Party’s Representative’s comments and observations in relation to assume the defense conduct of the Claim, then this Section 5.4.1(bThird Party Claim to the extent possible having regard to the corporate interest (intérêt social) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by Companies and/or the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.Buyer; and
(c) If act effectively, in a timely manner and in defending the Indemnifying Third Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c)Claim.
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant In the event that EUL, CPI or any other party entitled to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) Section 11.02 hereof shall choose to assert a claim for Loss or potential Loss based upon a claim by a third party (that third-party claim or assertion, a “"Third Party Claim”"), are subject to the following terms and conditions:
party seeking indemnification (a"Indemnified Party") The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) shall notify the Party from whom party against which indemnification is sought (the “"Indemnifying Party”") in writing of such claim, promptly following the occurrence of the existence event giving rise thereto, certifying that such a claim has been asserted and the basis therefor which shall be set forth in reasonable detail ("Notification").
(i) The Indemnifying Party shall acknowledge receipt of that Claim the Notification and advise the Indemnified Party in writing twenty (B20) transmit days after receipt thereof as to whether the Indemnifying Party a notice (a “agrees to such Third Party Claim Notice”) describing, in reasonable detail, and whether the nature defense of the Claim, Third Party Claim shall be undertaken by counsel of the choice of and copies at the expense of any papers served with respect to such Claimthe Indemnifying Party. Within 30 calendar days after receipt of any Claim Notice (If the “Election Period”)Indemnifying Party so agrees, the Indemnifying Party shall notify be deemed to have accepted any indemnifiable Loss suffered arising from such Third Party Claim, the Indemnified Party (A) whether defense of which has been assumed by the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such ClaimParty. If the Indemnifying Party does not notify advises the Indemnified Party within that it shall undertake the Election Period that defense of the Third Party Claim, the Indemnified Party shall deliver all the documents related to the Third Party Claim to the Indemnifying Party disputes or to its potential liability with respect to such Claimcounsel, any Damages resulting from such Claim shall be payable by after which the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense responsibility of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement)for the defense of the Third Party Claim shall cease, to file, during the Election Period, any motion, answer or other pleadings except that the Indemnified Party shall reasonably deem necessary or appropriate make available all documents, books and records in its possession related to protect its interests or those of the Third Party Claim, at no expense to the Indemnifying Party, and shall fully cooperate with counsel for the Indemnifying Party, including providing its personnel who are acquainted with the facts or the documents or books and records related to the Third Party Claim.
(bii) If the Indemnifying Party notifies advises the Indemnified Party within that the Election Period defense of the Third Party Claim will not be undertaken, either the Indemnified Party shall settle such Third Party Claim (in which case, the amount of such settlement and all attorneys' fees attendant to the achievement of such settlement shall be deemed included in any computation to determine Loss), or the Indemnified Party shall notify the Indemnifying Party of the identity of the counsel for the Indemnified Party who has been selected to defend the Third Party Claim. The Indemnifying Party shall fully cooperate with the Indemnified Party and its counsel to the extent that the Indemnifying Party elects to assume the defense has knowledge of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion facts or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) circumstances relating to the contrary, the Indemnifying Third Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have cause its counsel to be available to the right Indemnifying Party or its counsel to defend, at the sole cost and expense respond to any inquiries of the Indemnifying Party (if concerning the progress of such defense. In the event that the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently assert a claim for Loss as a result of any loss suffered by the Indemnified Party to a final conclusion in settling or settled at defending such Third Party Claim, the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that notify the Indemnifying Party shall not be liable for any in writing of such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed)claim. The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 shall pay all costs related to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) settlement or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and within thirty (30) days after a demand for the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesLoss or any component part is made.
Appears in 1 contract
Samples: Acquisition Agreement (Corspan Inc)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a under this Section 3 shall have the right, but not the obligation, exercisable by written notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such within thirty (30) days of receipt of a Third Party Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend Notice from the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement)thereto, to fileassume, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) conduct and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement through counsel of any Claim controlled by the Indemnifying Party pursuant its choosing that is reasonably acceptable to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Third Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b)Claim, then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defendprovided, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement)however, the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for have the right to assume the defense of any such compromise Third Party Claims if (i) the Indemnified Party shall have one or settlement unless such compromise more legal or settlement is made with equitable defenses available to it which are different from or in addition to those available to the Indemnifying Party’s express written consent , and, in the reasonable opinion of the Indemnified Party, counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party because such interests could be in conflict with those of the Indemnifying Party, (which ii) such litigation is reasonably likely to have a material adverse effect on any other matter beyond the scope or limits of the indemnification obligation of the Indemnifying Party, or (iii) the Indemnifying Party shall not have assumed the defense of the litigation in a timely fashion (but in any event within thirty (30) days of the Third Party Claim Notice). If the Indemnifying Party shall assume the defense of any Third Party Claim, the Indemnified Party shall be entitled to participate in any Third Party Claim at its expense, and the Indemnifying Party shall not settle such Third Party Claim unless the settlement shall include as an unconditional term thereof the giving by the claimant or the plaintiff of a full and unconditional release of the Indemnified Party, from all liability with respect to the matters that are subject to such Third Party Claim, or otherwise shall have been approved by the Indemnified Party, such approval not to be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(db) Notwithstanding anything The Parties shall cooperate in this Section 5.4.1 the defense of any Third Party Claim, with such cooperation to include (i) the contrary, to retention and the extent (1) provision of the Indemnifying Party has delivered a notice records and information that are reasonably relevant to the Indemnified such Third Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 Claim, and (Bii) such dispute is resolved in favor reasonable access to employees on a mutually convenient basis for providing additional information and explanation of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) any activities performed or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesmaterial provided hereunder.
Appears in 1 contract
Samples: Manufacturing Technology Transfer Agreement (Sorrento Therapeutics, Inc.)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed 8.5.1 If any legal proceeding shall be instituted or any claim or demand shall be asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify against the Indemnified Party (A) whether the Indemnifying each a "Third Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement"), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right right, after receipt of the Indemnified Party's notice under Section 8.4 hereof and upon giving notice to defend, at its sole cost and expense (if the Indemnified Party is entitled within 30 calendar days of such receipt, to indemnification under this Agreement), such defend the Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense with counsel of its own selection, provided that:
8.5.1.1 the Indemnified Party shall at all times have the right to fully participate in the defense at its own expense;
8.5.1.2 the Third Party Claim seeks only monetary damages and does not seek any injunctive or other relief against the Indemnified Party;
8.5.1.3 the Indemnifying Party unconditionally acknowledges in writing its obligation to indemnify and hold the Indemnified Party harmless with respect to the Third Party Claim; and
8.5.1.4 legal counsel chosen by the Indemnifying Party is satisfactory to the Indemnified Party, participate in, but not control, any defense or settlement of any Claim controlled acting reasonably.
8.5.2 Amounts payable by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything a Third Party Claim shall be paid in this Section 5.4.1(b) accordance with the terms of the settlement or, the judgment, as applicable, but in any event prior to the contrary, the Indemnifying expiry of any delay for a judgment to become executory.
8.5.3 Neither party shall be permitted to compromise and settle or to cause a compromise and settlement of any Third Party may notClaim, without the express prior written consent of the Indemnified Partyother party, agree to any compromise or settlement which does not include an unconditional release unless:
8.5.3.1 the terms of the Indemnified compromise and settlement do not require the other party to admit any wrongdoing or take or refrain from taking any action; and
8.5.3.2 both parties receive, as part of the compromise and settlement, a legally binding and enforceable unconditional satisfaction or release, which is in form and substance satisfactory to both parties, acting reasonably, from any and all obligations or liabilities it may have with respect to the Third Party from all DamagesClaim.
(c) 8.5.4 If the Indemnifying Party fails within 30 calendar days from receipt of the notice of a Third Party Claim to notify give notice of its intention to defend the Indemnified Third Party within the Election Period that Claim in accordance with Section 8.5, then the Indemnifying Party elects shall be deemed to assume have waived its right to defend the defense of the Third Party Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right (but not the obligation) to defendundertake or to cause the Indemnifying Party to undertake the defense of the Third Party Claim and compromise and settle the Third Party Claim on behalf, for the account and at the sole cost risk and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 8.5.5 For the avoidance of doubt, a Third Party Claim is a Claim, and thus subject to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved limitations set forth in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses8.1.
Appears in 1 contract
Third Party Claim. The Company (a) If the Buyer becomes aware of any Third Party Claim the Buyer shall, and shall procure that the Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditionsCompanies shall:
(ai) The Indemnified as soon as reasonably practicable, but no later than thirty (30) calendar days give written notice to the Sellers of such Third Party shallClaim in accordance with Section 10.5 and thereafter keep the Sellers informed throughout the process, with reasonable promptness after provided, however, that failure to do so by the Indemnified Buyer shall only reduce the Sellers’ liability if and to the extent such failure has prejudiced the Sellers’ rights or increased the Loss;
(ii) make no admission of liability, agreement or settlement relating to such Third Party has notice of a Claim, (1) notify Claim without the Party from whom indemnification is sought (the “Indemnifying Party”) prior written approval of the existence of that Sellers (such consent shall not be unreasonably withheld);
(iii) not take any action or omitting to take any action which could reasonably be expected to have an adverse effect on any insurance policy under which any such Third Party Claim and would be recoverable if such action had not been taken; and
(Biv) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of take any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period action that the Indemnifying Sellers reasonably request to avoid, dispute, resist, appeal, compromise or defend such Third Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume The Buyer shall control the defense of the any Third Party Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party acting in good faith. The Sellers shall have the right at their choice and cost to defend, at its sole cost participate and expense (if give advice in the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party defense in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree relation to any compromise negotiation, dispute or settlement which does not include an unconditional release of litigation relating to such Third Party Claim and the Indemnified Party from all DamagesBuyer shall consult with the Sellers in such defense.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period The Buyer shall ensure that the Indemnifying Sellers are informed without undue delay of the developments of the Third Party elects Claim, and shall be provided with copies of any correspondence or documentation material to assume the negotiation, dispute or litigation, provided always that such disclosure is possible without substantially jeopardizing the outcome of such negotiation, dispute or litigation, or legal privilege in relation thereto. In all events, the Parties shall cooperate in the defense of the Claim or if the Indemnifying against any asserted Third Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c)Claim.
(d) Notwithstanding anything in Should the Buyer not comply with this Section 5.4.1 to 10.12, the contrary, Sellers’ Liability shall be reduced to the extent (1) such failure has increased the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesLoss.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3In the case of any Third Party Claim, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness if within [***] after the Indemnified Party has receiving notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”)claim for indemnification, the Indemnifying Party shall notify the Indemnified Party (Ai) whether the Indemnifying Party disputes its potential liability gives written notice to the Indemnified Party under this Article 5 with respect stating that such Indemnifying Party would be liable in the amount of such claim if such claim were valid and that such Indemnifying Party disputes and intends to defend against such Third Party Claim at its or their own cost and expense and (ii) provides reasonable assurance to such Claim Indemnified Party that such indemnification will be paid fully and (B) whether promptly if required and such Indemnified Party will not incur cost or expense during the proceeding, then counsel for the defense shall be selected by the Indemnifying Party desires, at its sole cost and expense, (subject to defend the consent of the Indemnified Party, which consent shall not be unreasonably withheld); provided, however, that the assumption of defense of any such matters by the Indemnifying Party against such Claimshall relate solely to the Third Party Claim that is subject or potentially subject to indemnification. If the Indemnifying Party does assumes such defense in accordance with the preceding sentence, they shall have the right, with the consent of such Indemnified Party, which consent shall not notify be unreasonably withheld, to settle all indemnifiable matters related to such Third Party claims. The Indemnifying Party shall keep the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense apprised of the Indemnifying Party (but only if status of the claim and any resulting suit, proceeding or enforcement action, shall furnish the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings with all documents and information that the Indemnified Party shall reasonably deem necessary request and shall consult with the Indemnified Party prior to acting on all major matters, including settlement discussions. Notwithstanding anything herein stated, the Indemnified Party shall at all times have the right to fully participate in such defense at their own expense directly or appropriate through counsel; provided, however, if the named parties to protect its interests the action or those proceeding include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct, the reasonable expense of separate counsel for the Indemnified Party shall be paid by the Indemnifying Party. If no such notice of intent to dispute and defend is given by the Indemnifying Party, or if such diligent good faith defense is not being or ceases to be conducted, the Indemnified Party shall, at the expense of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume , undertake the defense of (with counsel selected by the ClaimIndemnified Party), then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defendcompromise or settle any such Third Party Claim. If such Third Party Claim is one that by its nature cannot be defended solely by the Indemnifying Party, at its sole cost and expense (if then the Indemnified Party is entitled to indemnification under this Agreement), such Claim by shall make available all appropriate proceedings, which proceedings shall be prosecuted diligently by information and assistance that the Indemnifying Party to a final conclusion or settled at the discretion of may reasonably request and shall cooperate with the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damagessuch defense.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming (a) In the event any claim for indemnification under this Agreement (an “Indemnified Party”) Article V is based on a claim asserted by a third party (that third-party claim or assertioni.e., a Person other than a party hereto or its Affiliates, or agents) (a “Third-Party Claim”), are subject the party seeking indemnification shall give prompt written notice to such other party of the Third-Party Claim, which notice shall specify in reasonable detail the basis of such claim and the facts pertaining thereto, and indicating the sections of this Agreement allegedly breached to the following terms extent determinable which are the basis for such claim and conditions:the best estimate of the amount to the extent determinable or estimable as of such notice date of the Damages that has been or may be suffered by the Indemnified Party; provided that the failure to so notify any Indemnifying Party shall not relieve such Indemnifying Party of its obligations hereunder except to the extent such failure shall have prejudiced such Indemnifying Party.
(ab) The Indemnified In the event of any Third-Party shallClaim, with reasonable promptness after the Indemnifying Party shall have the right, exercisable by written notice to the Indemnified Party has notice within thirty (30) days of receipt of a Claim, (1) notify Claims Notice to assume and conduct the Party from whom indemnification is sought (the “Indemnifying Party”) defense of the existence of that underlying Third-Party Claim and (B) transmit to with counsel selected by the Indemnifying Party a notice and reasonably satisfactory to the Indemnified Party; provided, that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim (a “Claim Notice”) describingother than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assume control of the defense, in reasonable detailwhich, notwithstanding the foregoing, shall be borne by the Indemnifying Party). Notwithstanding the foregoing, the nature Indemnifying Party shall not have the right to assume control of the Claim, and copies defense of any papers served Third-Party Claim and shall pay the reasonable fees and out-of-pocket expenses of a single counsel retained by all such Indemnified Parties with respect to such ClaimThird-Party Claim if: (i) the Indemnifying Party does not conduct the defense of the Third-Party Claim with reasonable diligence; or (ii) the Third-Party Claim seeks non-monetary, equitable or injunctive relief, (ii) alleges violations of criminal law, or (iii) includes as the named parties in any such Third-Party Claim both an Indemnified Party and an Indemnifying Party, and either a defense is available to an Indemnified Party that is not available to an Indemnifying Party or applicable ethical guidelines provide that, in either case, it would be inappropriate to have the same counsel represent both parties. Within 30 calendar days after receipt of any Claim Notice (If the “Election Period”Indemnifying Party has assumed such defense as provided in this Section 5.5(b), the Indemnifying Party shall notify the will not be liable for any legal expenses subsequently incurred by any Indemnified Party (A) whether in connection with the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to defense of such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claimclaim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying any Third-Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b5.5(b). The , the Indemnified Party may, may continue to defend such claim at its own the reasonable cost of the Indemnifying Party and expense, the Indemnifying Party may still participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the such Third-Party Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own sole cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant 8.8.1. If a matter or circumstance that may give rise to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted a Claim against a person claiming indemnification the Sellers under this Agreement is a result of or in connection with a Third Party Claim and the Buyer becomes aware of it (an “Indemnified Party”) provided that at least one member of the Management Board of the Company nominated by a third party (that third-party claim the Buyer or assertionany member of the management board of the Buyer shall become actually aware of such matter or circumstance. For the period after the Seller 1 is no longer the CEO of the Company, a “Claim”the Buyer shall instruct the CEO of the Company to inform the management board on the Claims exceeding deminimis amount), are subject in order to maintain the following terms and conditionsright to bring a Claim in relation to such Third Party Claim against the Sellers:
(a) The Indemnified the Buyer shall procure that either the Buyer or the Group Company notify the Sellers in writing and without unreasonable delay of such Third Party shall, with reasonable promptness Claim not later than within 60 (sixty) Business Days after the Indemnified date the Buyer and/or the Group Company became aware of such Third Party has notice Claim;
(b) the Buyer shall give the Sellers or their duly authorised representatives reasonable access to the personnel of the Buyer and the Group Company, and to any items, relevant premises, accounts, documents and records which are reasonably relevant to such Third Party Claim and are within the possession or control of the Buyer and/or the Group Company to enable the Sellers and its duly authorised representatives to investigate the Third Party Claim and to examine and take copies or photocopies thereof;
(c) the Buyer shall take actions as a reasonable person would take in such a position to avoid, dispute, resist, appeal or defend against such Third Party Claim, (1) notify including actions which are reasonably required to secure the required evidence, object the Third Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit otherwise defend against the Third Party Claim. If requested by the Sellers, subject to the Indemnifying Sellers indemnifying the Buyer against all relevant losses related to such Third Party a notice (a “Claim Notice”) describing, in reasonable detailClaim, the nature of Buyer shall allow the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desiresSellers, at its sole their own cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes participate directly and/or through its potential liability with respect to such Claimrepresentatives or advisers, in any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorizednegotiations, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer proceedings or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) litigation relating to the contrary, the Indemnifying Third Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedingsClaim, provided that the Indemnifying Sellers shall consider reasonable input/requests from the Buyer; and
(d) to the extent permitted by the applicable Laws, the Buyer will involve the Sellers in the litigation with regard to the Third Party Claim as third parties (in Lithuanian – tretieji asmenys) under the Civil Procedure Code of the Republic of Lithuania or in similar capacity if the litigation of the Third Party Claim is taking place not in Lithuanian courts.
8.8.2. The Buyer shall not be liable for put its best efforts to ensure that the Sellers are notified in advance without any such unreasonable delay about the Buyer’s intention with respect to admission of liability, execution of the agreement or compromise with any person, body or settlement unless such authority in relation to the Third Party Claim. The Buyer shall seek an approval by the Sellers of the proposed admission of liability, execution of the agreement or compromise with any person, body or settlement is made with authority in relation to the Indemnifying Party’s express written consent (Third Party Claim, which shall not be unreasonably withheldwithheld or delayed by the Sellers. If the Sellers withheld or delay such approval without a valid reason or do not answer within 20 (twenty) Business Days after getting reasonably necessary documentation to evaluate such Third Party Claim or the Buyer considers that reasons for such rejection or delay are not valid reasons, conditioned the Buyer may settle such Third Party Claim, ensuring all possible mitigation of Loss measures. In any case, the Sellers shall not be held liable for any part (or delayedall) of the Third Party Claim that exceeds what would have been a reasonable settlement of the Third Party Claim based on the legal merits of the claim and the costs in pursuing the matter with such third party in the courts or arbitration (as the case may be). The Indemnifying Party mayIf such dispute arises, at its own cost the Buyer shall be obliged to provide to the Sellers any and expense, participate in, but not control, all information and documents concerning subject matter of such dispute.
8.8.3. If the Sellers has paid any defense or amounts to the Buyer and/or the Group Company as a settlement of the Buyer’s claim related to the Third Party Claim and, thereafter, the Buyer and/or the Group Company have recovered all or some of such amounts from any Claim controlled third party, then the Buyer or the Group Company shall pay to the Sellers, amounts equal to the proportions of the amounts actually paid by the Indemnified Sellers, without delay:
(a) an amount equal to such recovered amount less any reasonable costs and expenses (including legal costs and Taxes) incurred or subsequently payable by the Buyer or the Group Company; or
(b) if such recovered amount less any reasonable costs and expenses (including legal costs and Taxes) is greater than the amount paid by the Seller to the Buyer and/or the Group Company in respect of the relevant Third Party Claim, such lesser amount which has been so paid by the Seller.
8.8.4. As long as the Seller 1 is the CEO of the Company, for any matter or circumstance becoming known pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything 8.8.1, other than the breach of the Sellers’ Warranties indicated in Section 6 of Annex 3, failure to observe any of the material requirements set forth in this Section 5.4.1 8.8 and failure to rectify such breach within reasonable time period since receipt of a written notice by the contrarySellers, shall entitle the Sellers to refuse to cover the Loss in connection with the Third Party Claim (but only to the extent (1) such failure increased the Indemnifying Party has delivered a notice to Sellers’ liability). As long as the Indemnified Party that Seller 1 is the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor CEO of the Indemnifying PartyCompany, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense for any matter or circumstance becoming known pursuant to Section 5.4.1(b) 8.8.1, regarding the breach of the Sellers’ Warranties indicated in Section 6 of Annex 3, failure to observe any of the material requirements set forth in this Section 8.8 and failure to rectify such breach within reasonable time period since receipt of a written notice by the Sellers, shall entitle the Sellers to refuse to cover the Loss in connection with the Third Party Claim. The same regulation applies to the Fundamental Warranties regardless of whether the Seller 1 is the CEO of the Company. For avoidance of doubt, Seller 1, as the CEO of the Company, shall be entitled to provide the other Sellers with the information regarding any claims and it will not be considered a breach of confidentiality provisions by the Seller 1. For any matter or circumstance becoming known while the Indemnified Party’s defense pursuant Seller 1 is no longer the CEO of the Company, failure to observe any of the material requirements set forth in this Section 5.4.1(c)8.8 and failure to rectify such breach within reasonable time period since receipt of a written notice by the Sellers, and shall release the Indemnified Sellers from obligation to cover the Loss in connection with the Third Party shall reimburse the Indemnifying Party in full for all of those costs and expensesClaim.
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (AST SpaceMobile, Inc.)
Third Party Claim. (a) Subject to paragraph (b) of this Section 7.4, the persons indemnified under this Section Seven shall have the right to conduct and control through counsel of their choosing, any third party claim, action or suit, and the persons indemnified may compromise or settle the same; provided that any of the indemnified persons shall give the indemnifying party advance notice of any proposed compromise or settlement and the indemnifying party shall have the right to approve or reject such proposed compromise or settlement. The Company Group member’s indemnification obligation pursuant indemnified person shall permit the indemnifying party to participate in the defense of any such action or suit through counsel chosen by it; provided that the fees and expenses of such counsel shall be borne by the indemnifying party. Subject to paragraph (b) of this Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.37.4, in each case, any compromise or settlement with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness for money damages effected after the Indemnified Party has indemnifying party by notice of a Claim, (1) notify or settlement shall discharge the Party indemnifying party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claimthe subject matter thereof, any Damages resulting from such Claim and no amount in respect thereof shall be payable by the Indemnifying Party claimed as Loss or Expense under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying PartySection Seven.
(b) If the Indemnifying Party notifies remedy sought in any action or suit referred to in paragraph (a) of this Section 7.4 is solely money damages and will have no continuing effect on the Indemnified Party within business of any indemnified person, the Election Period indemnifying party shall have 15 business days after receipt of the notice referred to in the last sentence of Section 7.3 to notify the indemnified persons that the Indemnifying Party it elects to assume conduct and control such action or suit. If the defense of indemnifying party does not give the Claimforegoing notice, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party indemnified persons shall have the right to defend, at its sole cost contest, settle or compromise such action or suit in the exercise of their exclusive discretion, and expense (if the Indemnified Party is entitled to indemnification under this Agreement)indemnifying party shall, such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion upon request from any of the Indemnifying Party indemnified persons, promptly pay to such indemnified persons in accordance with the other terms of this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement Seven the amount of any Claim controlled by Loss and all related Expenses resulting from such third-party claim. If the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to indemnifying party gives the contraryforegoing notice, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party indemnifying party shall have the right to defendundertake, conduct and control, through counsel of its own choosing and at the sole cost and expense of the Indemnifying Party indemnifying party, the conduct and settlement of such action or suit, and the indemnified persons shall cooperate with the indemnifying party in connection therewith; provided that (if i) the Indemnified Party is entitled indemnifying party shall not thereby permit to indemnification exist any lien, encumbrance or other adverse charge upon any asset of any indemnified person; (ii) the indemnifying party shall permit the indemnified persons to participate in such conduct or settlement through counsel chosen by the indemnified persons, but the fees and expenses of such counsel shall be borne by the indemnified persons except as provided in clause (iii) below; and (iii) the indemnifying party shall agree promptly to reimburse to the extent required under this Agreement), Section Seven the Claim by indemnified persons for the full amount of any Loss resulting from such action or suit and all appropriate proceedings, which proceedings shall be prosecuted diligently related Expenses incurred by the Indemnified Party to a final conclusion or settled at indemnified persons, except fees and expenses of counsel for the discretion indemnified persons incurred after the assumption of the Indemnified Party. The Indemnified Party shall have full conduct and control of such defense and proceedingsaction or suit by the indemnifying party. So long as the indemnifying party is contesting any such action or suit in good faith, including the indemnified persons shall not pay or settle any compromise such action or settlement of suit. Notwithstanding the foregoing, the indemnified persons shall have the right to pay or settle any such defense and proceedings, action or suit; provided that in such event the Indemnifying Party indemnified persons shall not be liable for waive any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled right to indemnity therefore by the Indemnified Party pursuant to indemnifying party, and no amount in respect thereof shall be claimed as Loss or Expense under this Section 5.4.1(c)Seven.
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed 10.6.1 If an Indemnity Claim by THEC or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) KeySpan involves any Action brought or made by a any third party (that third-party claim or assertion, a “Third Party Claim”), are subject then if THX acknowledges in writing its obligation to the following terms and conditions:
(a) The Indemnified indemnify THEC or KeySpan in respect of such Third Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, THX may elect (1by written notice to THEC delivered within thirty (30) notify the Party from whom indemnification is sought (the “Indemnifying Party”days of notice by THEC to THX pursuant to Section 10.5.1) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, assume at its sole cost and expense, expense the defense of such Third Party Claim using counsel reasonably acceptable to defend the Indemnified Party against such ClaimTHEC. If the Indemnifying Party THX does not notify the Indemnified so elect to assume such defense, then such Third Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable defended by THEC or KeySpan in such manner as it reasonably deems appropriate (and the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorizedcosts, at the sole cost fees and expense expenses of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this AgreementTHEC for such defense shall constitute Damages), to fileincluding entering a reasonable settlement thereof in which event the settlement plus THEC’s or KeySpan’s (as applicable) costs, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) fees and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings expenses with respect thereto shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but Damage; provided that THEC shall not control, enter into any defense or settlement of any such Third Party Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express prior written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedingsTHX, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned unless THX and its Affiliates have no liability therefor, are not required to admit any liability and will not be bound by any restrictions or delayed)limitations on its or their conduct thereafter, and no negative precedent for future claims, actions or litigation against THX and its Affiliates will be established, in which case no consent shall be required. The Indemnifying If the defense of a Third Party mayClaim has been assumed by THX, at its own cost THX shall cooperate with THEC or KeySpan in connection with such defense and expenseshall permit THEC or KeySpan to participate therein; provided, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party THX shall not be liable to THEC or KeySpan under the provisions hereof for any legal or other expenses incurred by THEC or KeySpan (as applicable) in connection with THEC’s or KeySpan’s (as applicable) participation in the defense of such Third Party Claim after THX has elected to assume the defense thereof so long as THX is diligently contesting such Third Party Claim in good faith, unless THEC or KeySpan is advised by outside counsel that an actual or potential conflict of interest exists between THEC or KeySpan (as applicable) and THX or that there are different or additional defenses available to THEC or KeySpan, as the case may be, that are not available to THX, in which case THEC may engage separate counsel (the fees and costs of which shall be borne by THX). THX may not enter into any settlement of a Third Party Claim without the prior written consent of THEC or KeySpan (as applicable), which will not be unreasonably withheld, unless KeySpan and THEC and their respective Affiliates have no liability therefor, are not required to bear admit any liability and will not be bound by any restrictions or limitations on its or their conduct thereafter, and no negative precedent for future claims, actions or litigation against KeySpan and THEC and their respective Affiliates will be established, in which case no consent shall be required.
10.6.2 If THX’s Indemnity Claim involves a Third Party Claim, then if THEC or KeySpan acknowledges in writing its obligation to indemnify THX in respect of such Third Party Claim, THEC or KeySpan may elect (by written notice to THX delivered within thirty (30) days of notice by THX to THEC pursuant to Section 10.5.1) to assume at its expense the costs defense of such Third Party Claim using counsel reasonably acceptable to THX. If THEC or KeySpan does not so elect to assume such defense, then such Third Party Claim shall be defended by THX in such manner as it reasonably deems appropriate (and the costs, fees and expenses of THX for such defense shall constitute Damages), including entering a reasonable settlement thereof in which event the Indemnifying Partysettlement plus THX’s costs, fees and expenses with respect thereto shall be the Damage; provided that THX shall not enter into any settlement of such Third Party Claim without the prior written consent of THEC, which consent shall not be unreasonably withheld, unless THEC, KeySpan and their respective Affiliates have no liability therefor, are not required to admit any liability and will not be bound by any restrictions or limitations on its or their conduct thereafter, and no negative precedent for future claims, actions or litigation against THEC, KeySpan and their respective Affiliates will be established, in which case no consent shall be required. If the Third Party Claim has been assumed by THEC or KeySpan, THEC or KeySpan (as applicable) shall cooperate with THX in connection with such defense pursuant and shall permit THX to Section 5.4.1(bparticipate therein; provided, that THEC or KeySpan (as applicable) shall not be liable to THX under the provisions hereof for any legal or other expenses incurred by THX in connection with THX’s participation in the defense of such Third Party Claim after THEC or KeySpan (as applicable) has elected to assume the defense thereof so long as THEC or KeySpan (as applicable) is diligently contesting such Third Party Claim in good faith, unless THX is advised by outside counsel that an actual or potential conflict of interest exists between THX and THEC or KeySpan (as applicable) or the Indemnified Party’s defense pursuant that there are different or additional defenses available to Section 5.4.1(cTHX that are not available to THEC or KeySpan (as applicable), in which case THX may engage separate counsel (the fees and costs of which shall be borne by THEC or KeySpan). THEC or KeySpan may not enter into any settlement of a Third Party Claim without the Indemnified Party prior written consent of THX, which will not be unreasonably withheld, unless THX and its Affiliates have no liability therefor, are not required to admit any liability and will not be bound by any restrictions or limitations on its or their conduct thereafter, and no negative precedent for future claims, actions or litigation against THX and its Affiliates will be established, in which case no consent shall reimburse the Indemnifying Party in full for all of those costs and expensesbe required.
Appears in 1 contract
Third Party Claim. The Company Group member’s (1) Within 30 days after the Indemnified Party receives notice of a claim, assertion, legal action, arbitration, investigation, or other matter or proceeding brought by any Person that is not a Party or an Affiliate of a Party and that may result in a Loss for which indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification may be sought under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third-Party Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of shall deliver a Claim, (1) notify the Claim Notice regarding such Third-Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describingParty, in reasonable detail, the nature of the Claim, and including copies of any papers served all pleadings and other information with respect to such Third-Party Claim. Within 30 calendar days after receipt The failure of any Claim Notice (the “Election Period”), Indemnified Party to so notify the Indemnifying Party shall notify the Indemnified Party (A) whether not relieve the Indemnifying Party disputes its potential of liability under this Agreement except to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period extent that the Indemnifying defense of such Third-Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable is materially prejudiced by the Indemnifying Party under this Agreementfailure to give such notice. The Indemnified Party is hereby authorized, at prior to the sole cost and expense of election by the Indemnifying Party (but only if to assume the Indemnified defense of such Third-Party is entitled to indemnification under this Agreement)Claim, to file, during the Election Period, file any motion, answer answer, or other pleadings pleading that the Indemnified Party it shall reasonably deem necessary or and appropriate to protect its interests or those of the Indemnifying Party and that is not prejudicial to the Indemnifying Party, all costs of which shall be included as Losses in respect of such claim for indemnification.
(b2) If At the election of the Indemnifying Party, which shall be made within 20 days after receipt of the Claim Notice, the Indemnified Party shall permit the Indemnifying Party notifies to assume control of the Indemnified defense of such Third-Party within Claim (to the Election Period extent only that such Third-Party Claim relates to a Loss for which the Indemnifying Party may be liable). If the Indemnifying Party elects to assume control of the defense of the Third-Party Claim, then (i) any expense incurred by the Indemnified Party thereafter for investigation or defense of the matter shall be borne by the Indemnified Party, and (ii) the Indemnified Party shall give all reasonable information and assistance, other than pecuniary, that the Indemnifying Party shall deem necessary and reasonably request to the proper defense of such Third-Party Claim. The Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in, but not control, the defense of the Third-Party Claim. If the Indemnifying Party elects to defend the Third-Party Claim under this Section 5.4.1(b14.5(b), then the Indemnifying Party shall work diligently to defend or otherwise resolve the Third-Party Claim. {JK01396073.28 }
(3) If the Indemnifying Party does not elect to assume control of the defense of the Third-Party Claim within the 20-day period provided in Section 14.5(b), the Indemnified Party will use its commercially reasonable efforts to defend, at the Indemnifying Party’s expense, any claim, assertion, legal action, or other matter to which such other Party’s indemnification under this Article XIV applies until the Indemnifying Party assumes such defense and, if settlement has been offered and the Indemnifying Party has not at such time admitted its obligation to defend and indemnify the Indemnified Party against such Third-Party Claim, the Indemnified Party shall apply (but not otherwise) send written notice to the Indemnifying Party of any proposed settlement and the Indemnifying Party shall have the right option for 10 days following receipt of such notice to defend, at (i) admit in writing its sole cost and expense (if obligation to indemnify the Indemnified Party from and against the liability and consent to such settlement, (ii) if liability is entitled to indemnification under this Agreement)so admitted, such Claim by all appropriate proceedingsreject, which proceedings shall be prosecuted diligently in its reasonable judgment, the proposed settlement, or (iii) deny liability. Any failure by the Indemnifying Party to a final conclusion or settled at respond to such notice shall be deemed to be an election under clause (iii) in the discretion of the immediately preceding sentence.
(4) The Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may shall not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying , enter into any judgment, compromise, settlement, or discharge with respect to the Third-Party may, at its own cost and expense, participate in, but not control, any defense or settlement Claim without the prior written consent of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
unless such judgment, compromise, settlement, or discharge (dw) Notwithstanding anything in this Section 5.4.1 to provides for the contrary, to the extent (1) payment by the Indemnifying Party has delivered a notice to of money as the sole relief for the claimant, (x) involves no finding or admission of any violation of Law or the rights of any Indemnified Party, (y) does not encumber any of the assets of any Indemnified Party (including the Assets) or agree to any restriction or condition that the Indemnifying Party disputes its potential liability would apply to the or materially adversely affect any Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the conduct of any Indemnified Party’s defense pursuant to Section 5.4.1(c)business, and the (z) includes, as a condition of any entry of judgment, settlement, compromise, discharge, or other resolution, a complete and unconditional release of each Indemnified Party shall reimburse the Indemnifying from any and all liabilities in respect of such Third-Party in full for all of those costs and expensesClaim.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Earthstone Energy Inc)
Third Party Claim. The Company Group member’s indemnification obligation Upon receipt of notice of a claim for indemnity from an Indemnified Party pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”8.01(d), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defendassume the defense and control any Third Party Claim, at its sole cost and expense (if but shall allow the Indemnified Party is entitled a reasonable opportunity to indemnification under this Agreement), participate in the defense of such Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by with its own counsel and at its own expense; provided that if (i) the Indemnifying Party and the Indemnified Party are both named parties to a final conclusion the proceedings and, in the reasonable opinion of counsel to the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or settled potential differing interests between them, or (ii) in the reasonable opinion of counsel to the Indemnified Party, such Third Party Claim involves the potential imposition of criminal liability on the Indemnified Party, then, in each such case, the applicable Indemnified Parties shall be entitled to participate in any such defense with one separate counsel at the discretion reasonable expense of the Indemnifying Party in accordance with this Section 5.4.1(b)Party. The Indemnifying Party shall select counsel of recognized standing and competence after consultation with the Indemnified Party may, at its own cost and expense, participate in, but not control, any shall take all reasonably necessary steps in the defense or settlement of any Claim controlled by the such Third Party Claim. The Indemnifying Party pursuant shall be authorized to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) consent to a settlement of, or the contraryentry of any judgment arising from, the Indemnifying any Third Party may notClaim, without the express written consent of the any Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not shall
(A) pay or cause to be liable for any paid all amounts arising out of such compromise settlement or settlement unless such compromise or settlement is made judgment concurrently with the Indemnifying Party’s express written consent (which shall not be unreasonably withheldeffectiveness of such settlement, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor not encumber any of the Indemnifying Party, the Indemnifying material assets of any Indemnified Party shall not be required or agree to bear the costs and expenses of the Indemnifying Party’s defense pursuant any restriction or condition that would apply to Section 5.4.1(b) or materially adversely affect any Indemnified Party or the conduct of any Indemnified Party’s defense pursuant to Section 5.4.1(c)business, (C) obtain, as a condition of any settlement or other resolution, a complete release of any Indemnified Party potentially affected by such Third Party Claim, and (D) ensure that the Indemnified Party shall reimburse the Indemnifying Party in full for all settlement does not include any admission of those costs and expenseswrongdoing or misconduct.
Appears in 1 contract
Samples: Asset Purchase Agreement
Third Party Claim. The Company Group member’s indemnification obligation pursuant (i) In the event that any written claim or demand for which an Indemnifying Party may have Liability to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or any Indemnified Party hereunder is asserted against a person claiming indemnification under this Agreement (an “or sought to be collected from any Indemnified Party”) Party by a third party (that third-party claim or assertion, a “Third-Party Claim”), are subject to the following terms and conditions:
(a) The such Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) shall promptly notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable, any other remedy sought thereunder, any relevant time constraints relating thereto, a notice reasonably detailed explanation of the events giving rise to such Third-Party Claim and any other material details pertaining thereto (a “Claim Notice”) describing, in reasonable detail, ); provided that the nature of the Claim, and copies of any papers served with respect failure to such Claim. Within 30 calendar days after receipt of any timely give a Claim Notice (shall not relieve the “Election Period”)Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to have been actually and materially prejudiced by such Claim and (B) whether the Indemnifying Party desiresfailure. Thereafter, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate deliver to protect its interests or those of the Indemnifying Party, promptly following the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third-Party Claim.
(bii) If In the event that the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party it elects to assume defend the defense of the Indemnified Party against a Third-Party Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if defend the Indemnified Party is entitled by appropriate proceedings and shall have the sole power to indemnification under this Agreement), direct and control such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by defense at its expense. Once the Indemnifying Party has made such election to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume control the defense of the Claim or if the Indemnifying Third-Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b)Claim, then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defendparticipate in (but not control) any such defense and to employ separate counsel of its choosing at such Indemnified Party’s expense. The Indemnifying Party shall not, at without the sole cost and expense prior written consent of the Indemnifying Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party (Claim if the terms of such settlement 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 is entitled to indemnification under this Agreement)Party, the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently or (B) a finding or admission of a violation of Law by the Indemnified Party to that would have a final conclusion or settled at the discretion of material and adverse effect on the Indemnified Party. The Whether or not the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnified Party shall have full control of such defense and proceedingsnot admit any Liability with respect to, including any settle, compromise or settlement discharge, such Third-Party Claim without the Indemnifying Party’s prior written consent. If the Indemnifying Party assumes the defense of a Third-Party Claim and is in good faith contesting such defense and proceedingsThird-Party Claim, provided 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 terms (x) obligates the Indemnifying Party to pay the full amount of Losses in connection with such Third-Party Claim or (y) releases the Indemnified Party in connection with such Third-Party Claim.
(iii) The Indemnified Party and the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with 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 Books and Records and applicable employees. Such cooperation shall include the retention and (upon the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by request) the Indemnified Party pursuant provision to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered of Books and Records and information that are reasonably relevant to such Third-Party Claim, and making applicable employees and Representatives available on a notice to the mutually convenient basis during normal business hours. The Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required use commercially reasonable efforts to bear the costs and expenses avoid production of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(cconfidential information (consistent with applicable Law), and the Indemnified to cause all communications among employees, counsel and others representing any party to a Third-Party shall reimburse the Indemnifying Party in full for all of those costs and expensesClaim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Samples: Transaction Agreement (Griffon Corp)
Third Party Claim. The Company Group member’s indemnification obligation pursuant In the event the facts giving rise to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming the claim for indemnification under this Agreement (an “Indemnified Party”) Article VIII shall involve any action or threatened claim or demand by a any third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after against the Indemnified Party has (a "Third Party Claim"), within the earlier of, as applicable, ten (10) days after receiving notice of the filing of a Claim, lawsuit or thirty (130) notify the Party from whom indemnification is sought (the “Indemnifying Party”) days after receiving notice of the existence of that a claim, demand, suit or proceeding (each a "Claim") giving rise to the claim for indemnification, the Indemnified Party shall send written notice of such Claim and (B) transmit to the Indemnifying Party a notice (a “the "Claim Notice”") describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release failure of the Indemnified Party from all Damages.
(c) If to give the Indemnifying Party fails to notify the Indemnified Party within the Election Period that Claim Notice shall not release the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification from liability under this Agreement)Article VIII; provided, the Claim by all appropriate proceedingshowever, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any losses incurred by the Indemnified Party which would not have been incurred but for the delay in the delivery of, or the failure to deliver, the Claim Notice. Except as set forth below, the Indemnifying Party shall be entitled to defend such compromise Claim in the name of the Indemnified Party at his or settlement unless such compromise its own expense and through counsel of his or settlement its own choosing. The Indemnifying Party shall give the Indemnified Party notice in writing within ten (10) days after receiving the Claim Notice from the Indemnified Party in the event the Claim is made with one involving an instituted suit or proceeding, or otherwise within thirty (30) days, of his or its intent to do so. If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the Indemnified Parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s express 's request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent, which consent (which shall not be unreasonably withheld, conditioned delayed or delayed)conditioned. The Indemnified Party may elect, by notice in writing to the Indemnifying Party mayParty, to continue to participate through his or its own counsel, at his or its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice shall have the right to control the defense of the Claim with counsel reasonably acceptable to the Indemnified Party Party. In the event that the Indemnifying Party disputes its potential liability is controlling the defense of the Claim and shall have negotiated a settlement thereof, which proposed settlement is final and unconditional as to the parties thereto and contains an unconditional release of the Indemnified Party, without the Indemnified Party under this Article 5 being liable for damages of any kind or nature or being otherwise required to pay any amount of money to any third party and (B) such dispute is resolved in favor does not include the imposition of any restrictions on the part of the Indemnifying PartyIndemnified Party or require that the Indemnified Party make an admission of guilt or liability or deliver a confession of judgment, or any other non-financial obligation which, in the Indemnifying Party shall not be required to bear the costs and expenses reasonable judgment of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and renders such settlement unacceptable, the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.consent to such settlement. STOCK PURCHASE AGREEMENT - PAGE 30
Appears in 1 contract
Samples: Stock Purchase Agreement (Home Interiors & Gifts Inc)
Third Party Claim. The Company Group member’s Under this Agreement, the obligation of Seller to indemnify (the "Indemnifying Party") and the entitlement to indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement of Buyer (an “the "Indemnified Party”") by in respect of, arising out of or involving a third party (that third-party claim or assertion, a “Claim”), are demand made by third parties (the "Third Party Claims") will be subject to the following terms and conditions:
(ai) The Upon receipt of written notice of any Third Party Claim asserted against, resulting to, imposed upon or incurred by an Indemnified Party, such Indemnified Party shallwill undertake the defense thereof, with reasonable promptness after by counsel of its own choosing, which counsel shall be reasonably satisfactory to the Indemnifying Party, provided that (A) the Indemnified Party has notice of agrees to consult with the Indemnifying Party in a timely manner on all important strategic matters relating to any such Third Party Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those not settle any Third Party Claim without the prior consent of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed)taking into account the balance of interests between the legal merits of the claim and any bona-fide commercial interest of the Indemnified Party to agree to a prompt settlement, and (C) that the Indemnified Party shall have a good faith duty to mitigate any loss in a commercially reason able manner, including taking all commercially reasonable steps to recover amounts due to the Indemnified Party as a result of 39 41 the relevant Third Party Claim. The Indemnifying Party may, at its own cost shall pay the reason able legal fees and expense, participate in, but not control, any defense or settlement of any Claim controlled legal expenses incurred by the Indemnified Party pursuant to this Section 5.4.1(c)in the defense of such claims.
(dii) Notwithstanding anything in this Section 5.4.1 The Indemnifying Party will provide the Indemnified Party against whom a Third Party Claim is asserted with access to the contrary, all records and documents relating to the extent (1) any Third Party Claim. The Indemnified Party will provide the Indemnifying Party has delivered a notice with access to all records and documents of the Indemnified Party that the Indemnifying relating to any Third Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesClaim.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3In the case of any Third Party Claim, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness if within [***] after the Indemnified Party has receiving notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”)claim for indemnification, the Indemnifying Party shall notify the Indemnified Party (Ai) whether the Indemnifying Party disputes its potential liability gives written notice to the Indemnified Party under this Article 5 with respect stating that such Indemnifying Party would be liable in the amount of such claim if such claim were valid and that such Indemnifying Party disputes and intends to defend against such Third Party Claim at its or their own cost and expense and (ii) provides reasonable assurance to such Claim Indemnified Party that such indemnification will be paid fully and (B) whether promptly if required and such Indemnified Party will not incur cost or expense during the proceeding, then counsel for the defense shall be selected by the Indemnifying Party desires, at its sole cost and expense, (subject to defend the consent of the Indemnified Party, which consent shall not be unreasonably withheld); provided, however, that the assumption of defense of any such matters by the Indemnifying Party against such Claimshall relate solely to the Third Party Claim that is subject or potentially subject to indemnification. If the Indemnifying Party does assumes such defense in accordance with the preceding sentence, they shall have the right, with the consent of such Indemnified Party, which consent shall not notify be unreasonably withheld, to settle all indemnifiable matters related to such Third Party claims. The Indemnifying Party shall keep the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense apprised of the Indemnifying Party (but only if status of the claim and any resulting suit, proceeding or enforcement action, shall furnish the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings with all documents and information that the Indemnified Party shall reasonably deem necessary request and shall consult with the Indemnified Party prior to acting on all major matters, including settlement discussions. Notwithstanding anything “[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as amended” herein stated, the Indemnified Party shall at all times have the right to fully participate in such defense at their own expense directly or appropriate through counsel; provided, however, if the named parties to protect its interests the action or those proceeding include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct, the reasonable expense of separate counsel for the Indemnified Party shall be paid by the Indemnifying Party. If no such notice of intent to dispute and defend is given by the Indemnifying Party, or if such diligent good faith defense is not being or ceases to be conducted, the Indemnified Party shall, at the expense of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume , undertake the defense of (with counsel selected by the ClaimIndemnified Party), then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defendcompromise or settle any such Third Party Claim. If such Third Party Claim is one that by its nature cannot be defended solely by the Indemnifying Party, at its sole cost and expense (if then the Indemnified Party is entitled to indemnification under this Agreement), such Claim by shall make available all appropriate proceedings, which proceedings shall be prosecuted diligently by information and assistance that the Indemnifying Party to a final conclusion or settled at the discretion of may reasonably request and shall cooperate with the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damagessuch defense.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 1 contract
Samples: Distribution Agreement
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to In the following terms and conditions:
(a) The Indemnified case of any Third Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, if within ten (110) notify Business Days after receiving the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to Notice the Indemnifying Party a gives written notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party stating (A) that the Indemnifying Party would be liable for indemnity under this Article 5 with respect to the provisions hereof if such Third Party Claim and were valid, (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability and intends to defend against such claim and (C) that the Indemnifying Party will be solely responsible for all costs, expenses and liabilities incurred in connection with respect or otherwise relating to such Claimclaim, any Damages resulting from such Claim then counsel for the defense shall be payable selected by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) subject to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld), conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, whereupon the Indemnifying Party shall not be required to bear make any payment to the Indemnified Party for the costs of its defense counsel in respect of such Third Party Claim as long as the Indemnifying Party is conducting a good faith and diligent defense; provided, that the Indemnified Party shall at all times have the right to fully participate in such defense at its own expense directly or through counsel. If the Indemnifying Party assumes the defense in accordance with the preceding sentence, it shall have the right, with the consent of the Indemnified Party, which consent shall not be unreasonably withheld, to settle the portion of such Third Party Claim that is subject to indemnification; provided, that the settlement (i) does not involve the imposition of an injunction or other equitable relief on the Indemnified Party, and (ii) expressly and unconditionally releases the Indemnified Party from all Liabilities with respect to such Third Party Claim (and all other claims arising out of the same or similar facts and circumstances), with prejudice. The Indemnifying Party shall keep the Indemnified Party apprised of the status of any Third Party Claim for which it has assumed the defense, shall furnish the Indemnified Party with all documents and information that such Indemnified Party reasonably requests, and shall consult with the Indemnified Party prior to acting on major matters, including settlement discussions. Notwithstanding any of the foregoing, the Indemnifying Party shall not have the right to assume control of the defense, and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party, if the Third Party Claim which such Indemnifying Party’s defense pursuant Party seeks to Section 5.4.1(bassume control of: (1) seeks non-monetary relief; (2) involves criminal or quasi-criminal allegations; (3) is one in which an Indemnifying Party and the Indemnified Party are both named in the complaint, and joint representation by the same counsel would be inappropriate under applicable standards of ethical conduct; (4) could reasonably be expected to adversely affect the Taxes of the Indemnified Party for a taxable period (or portion thereof) beginning or ending after the Closing Date; or (5) involves a claim for which an adverse determination would have a material and adverse effect on the Indemnified Party’s reputation or future business prospects. If notice of intent to dispute and defend is not given by the Indemnifying Party within the time period referenced above, or if such diligent good faith defense pursuant is not being or ceases to Section 5.4.1(cbe conducted, then the Indemnified Party may undertake the defense of (with counsel selected by such Indemnified Party), and shall have the right to compromise or settle, such Third Party Claim (exercising reasonable business judgment) in its discretion. If such Third Party Claim is one that, by its nature, cannot be defended solely by the Indemnifying Party, then the Indemnified Party shall reimburse make available all information and assistance that the Indemnifying Party shall reasonably request, and shall cooperate with the Indemnifying Party in full for such defense. For the purpose of clarification, with respect to litigation matters which involve multiple claims of which not all claims are entitled to indemnification hereunder, the indemnification procedures of this Section 9 shall apply solely to those costs and expensesclaims entitled to indemnification hereunder.
Appears in 1 contract
Samples: Purchase and Sale Agreement (AquaVenture Holdings LTD)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed If any legal proceeding or Third Party Claim shall be instituted or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party entitled to indemnification hereunder (that third-party claim or assertion, a the “ClaimIndemnitee”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) Indemnitee shall notify the Party from whom indemnification is sought party obligated to indemnify the Indemnitee (the “Indemnifying PartyIndemnitor”) in writing of said Third Party Claim. The failure of the existence of that Indemnitee to give reasonably prompt notice thereof Claim and (B) transmit shall not release, waive or otherwise affect Indemnitor’s obligations with respect thereto except to the Indemnifying extent that the Indemnitor is prejudiced as a result of such failure. Indemnitor shall have the right, at its expense, to be represented by counsel of its choice, and to defend against, negotiate, settle or otherwise deal with any Third Party a notice (a “Claim Notice”) describingClaim. If Indemnitee elects to defend against, in reasonable detailnegotiate, the nature of the settle or otherwise deal with any Third Party Claim, it shall do so at its own expense and shall within 30 days notify Indemnitor whether or not it shall do so. If Indemnitor elects not to defend against, negotiate, settle or otherwise deal with any Third Party Claim, Indemnitee may defend against, negotiate, settle or otherwise deal with such Third Party Claim, and copies of Indemnitor shall promptly, and in any papers served with respect to such Claim. Within 30 calendar event within 20 days after receipt demand therefor, reimburse the Indemnitee for the reasonable costs and expenses of any Claim Notice (the “Election Period”)such defense, the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim including attorneys’ fees and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claimother Losses incurred by Indemnitee in connection therewith. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim Indemnitor shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the any Third Party Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party mayIndemnitee may participate, at its own cost and expense, in the defense of such Third Party Claim; provided, however, that Indemnitee shall be entitled to participate inin any such defense with separate counsel at the expense of Indemnitor if, but not control(i) so requested by Indemnitor or (ii) in the reasonable mutual opinion of counsel to Indemnitee and Indemnitor, any defense a conflict or potential conflict exists between the Indemnitee and the Indemnitor that would make such separate representation advisable. The Parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such Third Party Claim, and the Party assuming the defense of any Third Party Claim controlled by shall keep the Indemnifying other Party pursuant to this Section 5.4.1(b)reasonably informed at all times of the progress and development of its defense of and compromise efforts with respect thereto shall furnish the other Party with copies of all relevant pleadings, correspondence and other documents. Notwithstanding anything in this Section 5.4.1(b) herein to the contrary, the Indemnifying Party may notneither Indemnitor nor Indemnitee shall, without the express written consent of the Indemnified Partyother, agree settle or compromise any Third Party Claim or permit a default or consent to entry of any compromise judgment unless (i) the claimant and such Party provide to the other Party an unqualified release from all liability in respect of the Third Party Claim and (ii) the settlement, compromise, or settlement which judgment involves only the payment of money damages by the Indemnitor and does not include impose an unconditional release injunction or other equitable relief on the Indemnitee or impose any restrictions on the operation of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense business of the Claim Company, Purchaser or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c)Affiliates.
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, 5.7.1. Where an Indemnified Party has received Notice of any Claim or becomes aware of any matter which may result in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement Claim from any other Person (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditions:
such Indemnified Person shall within 30 (athirty) The Indemnified days of receiving such Notice or becoming aware of any Third Party shallClaim, with reasonable promptness after the Indemnified Party has give written notice of a Claim, (1) notify the such Third Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice in reasonable detail in light of the circumstances then known to the Indemnified Party (a “Third Party Claim Notice”) describing, in reasonable detail, ); provided that the nature failure of such Indemnified Party to provide such notice shall not relieve the Indemnifying Party of its obligations under Clause 5 of this Agreement.
5.7.2. Upon receipt of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Third Party Claim Notice (the “Election Period”)Notice, the Indemnifying Party shall notify be obligated to undertake necessary legal actions to defend the Indemnified Party (A) whether Claim or take such action as may be best suitable in the Indemnifying Party disputes its potential liability circumstances with counsel reasonably satisfactory to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desiresParty, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If ’s sole expense. Notwithstanding the Indemnifying Party notifies foregoing, the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, (i) at its own cost and expense, retain separate counsel to participate in, but not control, in such defence or any defense negotiations or settlement of any Claim controlled by thereunder or (ii) in the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If event the Indemnifying Party fails to notify assume such defense within the period set out in Clause 5.7.3 (i) below, the Indemnified Party within may assume the Election Period that defense or compromise such Third Party Claim by itself, in which case: (a) the Indemnifying Party elects to assume shall remain liable for the defense costs and expenses of the such Third Party Claim or if the Indemnifying Party elects to assume the defense including all court costs and payment of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(cany interim amounts; (b) shall apply (but not otherwise) and the Indemnified Party shall have the right to defendcontest, at settle, compromise or otherwise dispose of such Third Party Claim without the sole cost and expense consent of the Indemnifying Party.
5.7.3. The Indemnifying Party shall make the indemnity payment in cash (or such other manner agreed in writing between the Indemnified Party and Indemnifying Party) to the Indemnified Party upon occurrence of earlier of the following: (i) the Indemnifying Party failing to assume defence within 10 (ten) days from the receipt of the Third Party Claim Notice or such other period within which such defense ought to be assumed to comply with requirements mandated by the third party claimant’s notice (where the third party claimant is a Governmental Authority) or otherwise as required under Applicable Law; or (ii) the Indemnifying Party having assumed the defence of the Third Party Claim, where a payment obligation under a Third Party Claim becomes due and payable including pursuant to a judgement, order by any Governmental Authority or arbitral award, in each case, which is not subject to any stay or other legal suspension or postponement, or a settlement or compromise having been consummated. Provided however that during the process of defense of the Third Party Claim, if the Indemnified Party is entitled required to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party incur any costs/expenses (including but not limited to pursuant to a final conclusion notice from any Governmental Authority or settled at interim order passed by a court of law requiring the discretion payment of whole or in part of the Indemnified Party. The Indemnified Third Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayedClaim). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required immediately upon receipt of a notice from the Indemnified Party in this regard, remit the said amounts to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant , subject to Section 5.4.1(c)receipt of documents evidencing such amounts being payable, and or otherwise discharge such Third Party Claim (as per the instructions of the Indemnified Party shall reimburse the Party).
5.7.4. The Indemnifying Party agrees that it will not, without the prior written consent of the Indemnified Party: (i) make any payment to the relevant third party; (ii) consent to the entry of any judgment; (iii) enter into any settlement, with respect to any such Third Party Claim; and/or (iv) make any filings or written submission, whether independently or in full for all of those costs and expensesresponse to any request or requirement to make such submission with any other third party including a Governmental Authority, with respect to the Third Party Claim.
Appears in 1 contract
Samples: Subscription Agreement
Third Party Claim. The Company Group member’s In the event of a Third-Party Claim, the party seeking indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified "Tendering Party”") by a third party (that third-party claim or assertion, a “Claim”), are subject shall tender the defense of such Third Party Claim to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) notify the Party party from whom indemnification is sought ("Non-Tendering Party"). The Non-Tendering Party shall, within ten (10) days after the “Indemnifying Party”receipt thereof, inform the Tendering Party in writing that the Non-Tendering Party will either:
(I) of ACCEPT THE TENDER OF THE DEFENSE WITHOUT A RESERVATION OF RIGHTS. If the existence of Non-Tendering Party agrees that the Third Party Claim and (B) transmit is a claim for which indemnification is provided for pursuant to the Indemnifying Party a notice terms of this agreement (a “Claim Notice”) describing, in reasonable detail, the nature of the "Proper Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”"), the Indemnifying Non-Tendering Party shall notify accept the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense tender of the Indemnifying Party (but only if defense without a reservation of rights. In such an event the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Non-Tendering Party shall reasonably deem necessary or appropriate to protect its interests or those control all aspects of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of such Third Party Claim and shall indemnify the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Tendering Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all DamagesArticle VI.
(cII) ACCEPT THE TENDER OF THE DEFENSE WITH A RESERVATION OF RIGHTS. If the Indemnifying Non-Tendering Party fails questions whether the Third Party Claim is a Proper Claim, the Non-Tendering Party may accept the tender of the defense with a reservation of rights. In such an event, the Non-Tendering Party shall submit such Third Party Claim to notify arbitration immediately in order to determine whether it is a Proper Claim. While the Indemnified arbitration is pending, the Non-Tendering Party within the Election Period that the Indemnifying Party elects to assume shall control all aspects of the defense of such Third Party Claim. If the decision of the arbitrator(s) is that it is:
(A) a Proper Claim, and the Third Party Claim or if is still pending, the Indemnifying Non-Tendering Party elects to assume shall continue the defense of the such Third Party Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) and shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at indemnify and hold the sole cost and expense of the Indemnifying Tendering Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made harmless in accordance with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and VI;
(B) such dispute is resolved in favor of a Proper Claim, but the Indemnifying PartyThird Party Claim has already been concluded, the Indemnifying Non-Tendering Party shall indemnify and hold the Tendering Party harmless in accordance with this Article VI;
(C) a claim for which indemnification is not be required to bear the costs and expenses of the Indemnifying Party’s defense provided for pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(cterms of this agreement ("Improper Claim"), and the Indemnified Third Party Claim is still pending, the Non-Tendering Party shall return all aspects of the defense of such Third Party Claim immediately to the Tendering Party. In such an event, the Tendering Party shall assume the control of all aspects of the defense of such Third Party Claim immediately and shall reimburse the Non-Tendering Party for all costs and Expenses (including, but not limited to, reasonable attorneys fees) incurred by the Non-Tendering Party in the defense of such Third Party Claim; or
(D) an Improper Claim, but the Third Party Claim has already been concluded, the Tendering Party shall reimburse the Indemnifying Non-Tendering Party for all costs and expenses (including, but not limited to reasonable attorneys fees) incurred by the Non-Tendering Party in full the defense of such Third Party Claim and shall reimburse the Non-Tendering Party for all of those costs and expensesamounts paid by the Non-Tendering Party for judgments or settlements relating to such Third Party Claim.
Appears in 1 contract
Samples: Purchase Agreement (Novex Systems International Inc)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with With respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertionany Third Party Claim, a “Claim”), are subject to the following terms and conditions:
(a) The procedure shall apply. Promptly after receipt by an Indemnified Party of notice of an action arising from a Third Party Claim such Indemnified Party shall, with reasonable promptness after the Indemnified if a claim in respect thereof is to be made against Indemnifying Party has give notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a of such action, but the failure so to notify the Indemnifying Party shall not relieve it of any liability that it may have to any Indemnified Party except to the extent the Indemnifying Party demonstrates that the defense of such action is prejudiced thereby. In case any such action shall be brought against an Indemnified Party and it shall give notice (a “Claim Notice”) describing, in reasonable detail, to the nature Indemnifying Party of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”)commencement thereof, the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability be entitled to participate therein and, to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desiresextent that it shall elect, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claimthereof with its counsel and, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by after notice from the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the such Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects its election so to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b)thereof, then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable to such Indemnified Party for any fees of other counsel or any other expenses, in each case subsequently incurred by such Indemnified Party in connection with the defense thereof. If Indemnifying Party assumes the defense of such an action, (a) no compromise or settlement unless such compromise or settlement is made with thereof may be effected by the Indemnifying Party without the Indemnifying Party’s express written 's consent (which shall not be unreasonably withheld, conditioned ) unless (i) there is no finding or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, admission or any defense violation of law or settlement any violation of the rights of any Claim controlled by person and no effect on any other claims that may be made against the Indemnified Party pursuant to this Section 5.4.1(c).
or (dii) Notwithstanding anything the sole relief provided is monetary damages that are paid in this Section 5.4.1 to the contrary, to the extent (1) full by the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (Bb) such dispute is resolved in favor of the Indemnifying Party, the -27- Indemnifying Party shall have no liability with respect to any compromise or settlement thereof effected without its consent (which shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(cunreasonably withheld), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant In the event that CXNC, FFAX or any other party entitled to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) Section 11.02 hereof shall choose to assert a claim for Loss or potential Loss based upon a claim by a third party (that third-party claim or assertion, a “"Third Party Claim”"), are subject to the following terms and conditions:
party seeking indemnification (a"Indemnified Party") The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) shall notify the Party from whom party against which indemnification is sought (the “"Indemnifying Party”") in writing of such claim, promptly following the occurrence of the existence event giving rise thereto, certifying that such a claim has been asserted and the basis therefore which shall be set forth in reasonable detail ("Notification").
(i) The Indemnifying Party shall acknowledge receipt of that Claim the Notification and advise the Indemnified Party in writing twenty (B20) transmit days after receipt thereof as to whether the Indemnifying Party a notice (a “agrees to such Third Party Claim Notice”) describing, in reasonable detail, and whether the nature defense of the Claim, Third Party Claim shall be undertaken by counsel of the choice of and copies at the expense of any papers served with respect to such Claimthe Indemnifying Party. Within 30 calendar days after receipt of any Claim Notice (If the “Election Period”)Indemnifying Party so agrees, the Indemnifying Party shall notify be deemed to have accepted any indemnifiable Loss suffered arising from such Third Party Claim, the Indemnified Party (A) whether defense of which has been assumed by the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such ClaimParty. If the Indemnifying Party does not notify advises the Indemnified Party within that it shall undertake the Election Period that defense of the Third Party Claim, the Indemnified Party shall deliver all the documents related to the Third Party Claim to the Indemnifying Party disputes or to its potential liability with respect to such Claimcounsel, any Damages resulting from such Claim shall be payable by after which the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense responsibility of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement)for the defense of the Third Party Claim shall cease, to file, during the Election Period, any motion, answer or other pleadings except that the Indemnified Party shall reasonably deem necessary or appropriate make available all documents, books and records in its possession related to protect its interests or those of the Third Party Claim, at no expense to the Indemnifying Party, and shall fully cooperate with counsel for the Indemnifying Party, including providing its personnel who are acquainted with the facts or the documents or books and records related to the Third Party Claim.
(bii) If the Indemnifying Party notifies advises the Indemnified Party within that the Election Period defense of the Third Party Claim will not be undertaken, either the Indemnified Party shall settle such Third Party Claim (in which case, the amount of such settlement and all attorneys' fees attendant to the achievement of such settlement shall be deemed included in any computation to determine Loss), or the Indemnified Party shall notify the Indemnifying Party of the identity of the counsel for the Indemnified Party who has been selected to defend the Third Party Claim. The Indemnifying Party shall fully cooperate with the Indemnified Party and its counsel to the extent that the Indemnifying Party elects to assume the defense has knowledge of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion facts or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) circumstances relating to the contrary, the Indemnifying Third Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have cause its counsel to be available to the right Indemnifying Party or its counsel to defend, at the sole cost and expense respond to any inquiries of the Indemnifying Party (if concerning the progress of such defense. In the event that the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently assert a claim for Loss as a result of any loss suffered by the Indemnified Party to a final conclusion in settling or settled at defending such Third Party Claim, the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that notify the Indemnifying Party shall not be liable for any in writing of such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed)claim. The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 shall pay all costs related to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) settlement or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and within thirty (30) days after a demand for the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesLoss or any component part is made.
Appears in 1 contract
Samples: Acquisition Agreement (Frefax Inc)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3Should any claim be made, in each caseor suit or proceeding ------------------ (including, with respect to Damages claimed without limitation, a binding arbitration or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”audit by any taxing authority) be instituted by a third party against an Indemnitee which, if prosecuted successfully, would be a matter for which the Indemnitee is entitled to indemnification under Section 1 hereof (that third-party claim or assertion, a “"Third Party Claim”"), are the ------------------- obligations and liabilities of the parties hereunder with respect to such Third Party Claim will be subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has Indemnitee shall give Cybernet written notice of a Claimany such Third Party Claim promptly after receipt by Indemnitee of actual notice thereof, (1) notify and Cybernet will undertake the defense thereof by representatives of its own choosing. If Cybernet undertakes the defense of such claim, Cybernet will have the exclusive right to defend, contest and litigate the Third Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies the exclusive right, subject to the terms of Section 3(b) below, in its discretion, in good faith, and upon the advice of counsel, to settle any papers served with respect such matter, either before or after the initiation of litigation, at such time and upon such terms as Cybernet can and will satisfy and as it deems fair and reasonable; provided that at least 10 days prior written notice of the intended settlement must be provided to Indemnitee. If, however, Cybernet fails or refuses to undertake the defense of such Claim. Within claim within 30 calendar business days after receipt written notice of any Claim Notice (such claim has been given to Cybernet by Indemnitee, Indemnitee will have the “Election Period”)right to undertake the defense, the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes compromise and, settlement of such claim with counsel of its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Partyown choosing.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume Indemnitee and Cybernet will cooperate with each other in all reasonable respects in connection with the defense of the any Third Party Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and including making available records relating to such claim as may be reasonably necessary for the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion preparation of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant such claim or for testimony as witness in any proceeding relating to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damagessuch claim.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including In connection with any compromise or settlement of such defense and proceedingsa Third Party Claim negotiated by Cybernet, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall Indemnitee will not be required to bear the costs and expenses take any of the Indemnifying Party’s defense pursuant following actions:
(i) Enter into any settlement that does not include the delivery by the claimant or plaintiff to Section 5.4.1(bIndemnitee of an unconditional release from all liability with respect to the Third Party Claim.
(ii) Enter into any settlement that requires Indemnitee to take any affirmative action as a condition of the settlement.
(iii) Consent to the entry of judgment that does not include a full dismissal of the litigation or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesproceedings against Indemnitee with prejudice.
Appears in 1 contract
Samples: Partnership Agreement (Cybernet Internet Services International Inc)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with With respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “any Third Party Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify have the right, at its expense, to participate in or assume control of the negotiation, settlement or defence of the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to for all the Indemnified Party under this Article 5 with respect to Party's out-of-pocket expenses as a result of such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claimparticipation or assumption. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defendparticipate in the negotiation, at settlement or defence of such Third Party Claim and to retain counsel to act on its behalf provided that the sole cost fees and expense disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (if such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If any Third Party Claim is of a nature such that the Indemnified Party is entitled required by applicable law to indemnification under this Agreement)make a payment to any person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Claim by all appropriate proceedingsIndemnified Party may make such payment and the Indemnifying Party shall, which proceedings shall be prosecuted diligently forthwith after demand by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by reimburse the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to for such payment. If the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential amount of any liability to of the Indemnified Party under this Article 5 and (B) the Third Party Claim in respect of which such dispute payment was made, as finally determined, is resolved in favor less than the amount that was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 1 contract
Samples: Share Purchase Agreement (International Menu Solutions Corp)
Third Party Claim. The Company Group member’s indemnification obligation pursuant a) If the Compensable Event relates to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3a claim, in each caselegal action, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) proceeding brought by a third party party, including any Government Entity (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditionsshall proceed as follows:
(ai) The Indemnified Affected Party shallshall send a written notice to the Accused Party, together with reasonable promptness after copies of all documents of the Indemnified Third Party has notice Claim and any other relevant documents, before the earlier of (x) the fulfillment of a period of ten (10) days following the date on which the Accused Party is notified or becomes aware of the respective Third Party Claim, and (1y) notify two (2) business days prior to the date of the deadline to give response to such claim in a manner that allows the Accused Party from whom indemnification is sought to respond or object in a timely manner to such Third Party Claim in accordance with applicable law (the “Indemnifying PartyNotification of Third Party Claim”) ). The Parties agree that only in the event that the delay in sending such Notification of Third Party Claims by the Accused Party to make innocuous the rights of defense of the existence of that Claim and (B) transmit Accused Party in the respective Process, the Accused Party shall lose the right to compensation in relation to the Indemnifying Loss that may arise from the corresponding Third Party a notice Claim.
(a “Claim Notice”ii) describingThe Accused Party shall have the right, in reasonable detail, the nature upon becoming aware of the any Third Party Claim, to take measures, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”)hire experts, the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desiresconsultants, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period and/or legal counsel that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably they in good faith may deem necessary or appropriate to protect its interests or those assume the exclusive defense of such claim, and the Accused Party shall assume the responsibility for all the costs incurred in connection with such Third Party Claim, including costs associated with the outcome of the Indemnifying claim or the transaction itself. Within fifteen (15) business days following the receipt of the Notification of Third Party Claim, the Accused Party must give written notice to the Affected Party of its decision whether to take on the defense against the Third Party Claim. In any case, the Accused Party shall be entitled to participate in such defense at its own cost and with the lawyers appointed at its discretion. In any case, the Parties agree to provide to each other, without compensation, assistance that may reasonably require the other Party in order to ensure proper and adequate defense of any Third Party Claim, and each Party agrees to defend and require its designated legal advisor to defend any Third Party Claim diligently and in good faith.
(iii) In no case may any of the Parties reach an agreement, reconciliation, transaction, or cancellation of any claim or demand (including, without limitation, under any applicable amnesty Law) without the prior written consent of the other Party.
(biv) If the Indemnifying Compensable Event comes from a judicial or arbitral decision, it shall be required to be enforceable in order for compensation to be enforceable, so that at the time the judicial or arbitral decision is clearly made, the Accused Party notifies shall be obliged to indemnify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense amounts due from such decisions in favor of the ClaimAffected Party.
(v) In any Processes related to the Compensable Event and those included with the Affected Party as a defendant or impleader, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Accused Party shall have the right to defendmay be, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Affected party, impleader or attached to the Process so that it complies with its obligation of indemnity when any harm against the Affected Party in accordance arises or may arise. If the Accused Party was not named impleader or attached to the Process concerning a Third Party Claim of that included with this Section 5.4.1(b). The Indemnified the Affected Party, the Affected Party may, at its own cost and expensein any case, participate inassert their right of indemnity under this Agreement, but not control, any defense or settlement of any Claim controlled by against the Indemnifying Accused Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to after the contrary, the Indemnifying Party may not, without the express written consent termination of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damagesrespective Process.
(cvi) If A Compensable Event originated in a Third Party Claim shall be deemed final and conclusive, when the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense amount of the corresponding loss:
1. It is not objected by the Accused Party; or
2. It is finally determined by agreement, conciliation, or transaction on a Third Party Claim or if that has the Indemnifying Party elects to assume the defense same effect as a final and unappealable decision of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply a competent authority (but not otherwiseres judicata) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently has been previously accepted in writing by the Indemnified Party to Parties; or
3. It is recorded in an enforceable decision from a final conclusion or settled at competent authority issued in the discretion development of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c)a Process.
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, If any of the Purchasers receives written notice of the assertion of any claim or demand by any Person who is not a Party or Affiliate of any Party (a “Third Party Claim”) against any of the Purchasers with respect to Damages claimed which an Indemnity Claim is to be sought or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) which may be sought by a third party (that third-party claim or assertion, a “Claim”), are subject to any such Purchaser from the following terms and conditionsSeller:
(a) The Indemnified Party shall, with Purchasers will give the Seller written notice thereof within a reasonable promptness after the Indemnified Party has time from receipt of notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) assertion of such claim or of the existence commencement of that Claim and (B) transmit to the Indemnifying Party a any claim, action or proceeding. Such notice (a “Claim Notice”) describing, in reasonable detail, shall describe the nature of the Third Party Claim in reasonable detail (including a copy of the Third Party Claim) and shall indicate the estimated amount, and copies if practicable, of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period Loss that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall has been or may be payable sustained by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying PartyPurchasers.
(b) If the Indemnifying Party Seller notifies the Indemnified Party within Purchasers that it accepts liability for such claim, the Election Period that Purchasers, in consultation with the Indemnifying Party elects to assume Seller, shall enter into a settlement agreement with the defense third party claimant, and all costs and expenses for such settlement shall be for the account of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all DamagesSeller.
(c) If the Indemnifying Party fails to notify Seller notifies the Indemnified Party within Purchasers that it does not accept liability for said claim, then the Election Period Purchasers and the Seller shall, at the expense of the Seller, cooperate with each other in good faith in defending against the claim or taking such other action as may be appropriate under the circumstances, taking into account the best interests of LB Holdco (or the LB Holdco Subsidiary, as appropriate) and advice of legal counsel.
(d) In the event that the Indemnifying Party elects Purchasers and the Seller disagree on the course of action to assume be taken, the defense of matter shall be referred to the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations Claims Dispute Resolution process under Section 5.4.1(b)7.7 but in the meantime, then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party Purchasers shall have the right to defend, at handle the sole cost and expense claim in a way they deem appropriate taking into account the best interests of the Indemnifying Party LB Holdco (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c)LB Holdco Subsidiary, as appropriate) and the Indemnified Party shall reimburse the Indemnifying Party in full for all advice of those costs and expenseslegal counsel.
Appears in 1 contract
Third Party Claim. The Company Group member’s In the event of a Third-Party Claim, the party seeking indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified "Tendering Party”") by a third party (that third-party claim or assertion, a “Claim”), are subject shall tender the defense of such Third Party Claim to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) notify the Party party from whom indemnification is sought (the “Indemnifying "Non-Tendering Party”"). The Non-Tendering Party shall, within ten (10) days of the existence receipt thereof, inform the Tendering Party in writing that the Non-Tendering Party will either:
(i) Accept the Tender of the Defense Without a Reservation of Rights. If the Non-Tendering Party agrees that the Third Party Claim and (B) transmit is a claim for which indemnification is provided for pursuant to the Indemnifying Party a notice terms of this Agreement (a “Claim Notice”) describing, in reasonable detail, the nature of the "Proper Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”"), the Indemnifying Non-Tendering Party shall notify accept the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense tender of the Indemnifying Party (but only if defense without a reservation of rights. In such an event the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Non-Tendering Party shall reasonably deem necessary or appropriate to protect its interests or those control all aspects of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of such Third Party Claim and shall indemnify the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Tendering Party in accordance with this Section 5.4.1(bArticle XI.
(ii) Accept the Tender of the Defense With a Reservation of Rights. If the Non-Tendering Party questions whether the Third Party Claim is a Proper Claim, the Non-Tendering Party may accept the tender of the defense with a reservation of rights. In such an event, the Non-Tendering Party shall submit such Third Party Claim to arbitration immediately in order to determine whether it is a Proper Claim. While the arbitration is pending, the Non-Tendering Party shall control all aspects of the defense of such Third Party Claim; provided, however, that the Tendering Party shall have a reasonable right to participate in decisions with respect to defense of Third Party Claims during the period the arbitration is pending. If the decision of the arbitrator(s) is that it is:
(A) a Proper Claim, and the Third Party Claim is still pending, the Non-Tendering Party shall continue the defense of such Third Party Claim and shall defend, indemnify and hold the Tendering Party harmless in accordance with this Article XI;
(B) a Proper Claim, but the Third Party Claim has already been concluded, the Non-Tendering Party shall indemnify and hold the Tendering Party harmless in accordance with this Article XI;
(C) a claim for which indemnification is not provided for pursuant to the terms of this Agreement ("Improper Claim"), and the Third Party Claim is still pending, the Non-Tendering Party shall return all aspects of the defense of such Third Party Claim immediately to the Tendering Party. The Indemnified In such an event, the Tendering Party may, at its own cost shall assume the control of all aspects of the defense of such Third Party Claim immediately and expense, participate inshall reimburse the Non-Tendering Party for all costs and expenses (including, but not controllimited to, any defense or settlement of any Claim controlled reasonable attorneys fees) incurred by the Indemnifying Non-Tendering Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(bthe defense of such Third Party Claim; or
(D) to an Improper Claim, but the contraryThird Party Claim has already been concluded, the Indemnifying Tendering Party may notshall reimburse the Non-Tendering Party for all costs and expenses (including, without but not limited to reasonable attorneys fees) incurred by the express written consent Non-Tendering Party in the defense of such Third Party Claim and shall reimburse the Indemnified Party, agree Non-Tendering Party for all amounts paid by the Non-Tendering Party for judgments or settlements relating to any compromise or settlement which does not include an unconditional release of the Indemnified such Third Party from all DamagesClaim.
(ciii) Reject the Tender of the Defense. If the Indemnifying Non-Tendering Party fails to notify the Indemnified Party within the Election Period decides that the Indemnifying Third Party elects Claim is an Improper Claim, the Non-Tendering Party shall reject the tender of the defense. In such an event, the Non-Tendering Party shall submit such Third Party Claim to arbitration immediately in order to determine whether it is a Proper Claim. While the arbitration is pending, the Tendering Party shall control all aspects of the defense of such Third Party Claim. If the decision of the arbitrator(s) is that it is:
(A) a Proper Claim, and the Third Party Claim is still pending, the Tendering Party shall transfer the control of all aspects of the defense of such Third Party Claim to the Non-Tendering Party. The Non-Tendering Party shall assume the defense of such Third Party Claim immediately and shall reimburse the Claim or if Tendering Party for all costs and expenses (including, but not limited to, reasonable attorneys fees) incurred by the Indemnifying Tendering Party elects to assume in the defense of such Third Party Claim and shall defend, indemnify and hold the Tendering Party harmless in accordance with this Article XI;
(B) a Proper Claim, but the Third Party Claim but fails to satisfy its obligations under Section 5.4.1(b)has already been concluded, then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Non-Tendering Party shall have indemnify and hold the right to defend, at Tendering Party harmless in accordance with this Article XI and shall reimburse the sole cost Tendering Party for all costs and expense of the Indemnifying Party expenses (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate inincluding, but not controllimited to, any defense or settlement of any Claim controlled reasonable attorneys fees) incurred by the Indemnified Tendering Party pursuant to in the defense of such Third Party Claim and shall defend, indemnify and hold the Tendering Party harmless in accordance with this Section 5.4.1(c).Article XI;
(dC) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c)an Improper Claim, and the Indemnified Third Party Claim is still pending, the Tendering Party shall reimburse continue to control all aspects of the Indemnifying defense of such Third Party in full for Claim; or
(D) an Improper Claim, but the Third Party Claim has already been concluded, the Tendering Party shall bear all of those costs and expenseslosses incurred by the Tendering Party relating to such Third Party Claim.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3Promptly after receipt by the Buyer ----------------- or the Seller of notification of the assertion, in each caseor possible assertion, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party of any claim, action, suit, proceeding or demand with respect to which indemnification shall or may be claimed by the Buyer or the Seller pursuant to this Section 6 (the "THIRD PARTY CLAIM") (such recipient being referred to hereinafter as the "INDEMNITEE") the Indemnitee shall give written notice describing the Third Party Claim in reasonable detail (an "INDEMNITY NOTICE") to the other party (herein, the "INDEMNITOR"). Failure by the Indemnitee to send the Indemnity Notice shall not release the Indemnitor from its
1. Neither the Indemnitor nor the Indemnitee shall adjust, compromise or settle any such claim, action, suit, proceeding or demand without the written consent of the other, which consent shall not be unreasonably withheld. As to any Third Party Claim the defense of which has been assumed by the Indemnitor, (i) the Indemnitee shall cooperate fully in such defense as and to the extent reasonably requested by the Indemnitor (such cooperation shall include the retention and, upon the Indemnitor's request, the provision to the Indemnitor of records and information that third-party are reasonably relevant to such claim or assertiondemand and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder) and (ii) the Indemnitor shall not, subsequent to such assumption, be liable for any legal expenses incurred by the Indemnitee. In the event of any claim under this Section 6 for indemnification (whether or not in connection with a “Third Party Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after Indemnitee shall promptly advise the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describingIndemnitor in writing, in reasonable detail, the nature of the Claim, amount and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent circumstances surrounding said claim (which notice shall not also be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant deemed to this Section 5.4.1(cbe an Indemnity Notice).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 1 contract
Samples: General Partnership Interest Purchase Agreement (Pratt Hotel Corp /De/)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, (i) If the claim or demand set forth in each case, with respect to Damages claimed the Notice of Claim is a claim or demand asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “"Third Party Claim”"), are subject New WCG will have 15 calendar days after the date of receipt by New WCG of the Notice of Claim (the "Notice Date") to notify the following terms and conditions:Indemnified Parties in writing of the election by New WCG to defend the Third Party Claim on behalf of the Indemnified Parties.
(aii) The Indemnified If New WCG elects to defend a Third Party shall, with reasonable promptness after Claim on behalf of the Indemnified Party has notice of a ClaimParties, (1) notify the Party from whom indemnification is sought (Indemnified Parties will make available to New WCG and their agents and representatives all records and other materials in their possession which are reasonably required in the “Indemnifying Party”) defense of the existence of that Claim and (B) transmit to the Indemnifying Third Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies New WCG will pay all reasonable expenses payable in connection with the defense of the Third Party Claim as they are incurred (subject to any papers served with respect applicable limitations set forth in Section 6.1).
(iii) In no event may New WCG settle or compromise any Third Party Claim without the Indemnified Parties' prior written consent, which may not be unreasonably withheld or delayed.
(iv) If New WCG elects to such defend a Third Party Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Indemnified Parties will have the right to participate in the defense of the Third Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost Indemnified Parties' expense (and expense of without the Indemnifying Party (but only if the Indemnified Party is entitled right to indemnification for such expense under this Agreement), to fileprovided, during the Election Periodhowever, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those reasonable fees and expenses of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently counsel retained by the Indemnified Party to a final conclusion or settled Parties will be at the discretion expense of New WCG if (A) the use of the counsel chosen by New WCG to represent the Indemnified Party. The Parties would present such counsel with a conflict of interest; (B) the parties to such proceeding include both Indemnified Party Parties and New WCG and there may be legal defenses available to Indemnified Parties which are different from or additional to those available by New WCG; (C) within 10 calendar days after being advised by New WCG of the identity of counsel to be retained to represent Indemnified Parties, they shall have full control objected to the retention of such defense counsel for valid reason, and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party New WCG shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice have retained different counsel satisfactory to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.Parties; or
Appears in 1 contract
Samples: Investment Agreement (Williams Communications Group Inc)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 a) In the event that a claim is made against an Indemnified Person by a Third Party (“Third Party Claim”) and Provider’s indemnification obligation pursuant to Section 5.3in respect of which the Indemnified Persons may make a claim for indemnification, in each caseaccordance with the terms of this Agreement, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after then the Indemnified Persons shall immediately and in any event within a period of 15 (Fifteen) Business Days from the date of receipt of such Third Party has notice of a Claim, (1) notify the Indemnifying Person of such Third Party from whom indemnification is sought Claim in writing (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Third Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature ). Such notification shall include all details (including an estimate of the Claimamount) then known to the Indemnified Persons in respect of the Third Party Claim or the events, matters or circumstances that would reasonably be expected to give rise to the Third Party Claim (as applicable) and copies of any papers served with respect all documents relating thereto as have been delivered by the Third Party to such Claim. Within 30 calendar days after the Indemnified Person.
b) Upon receipt of any the Third Party Claim Notice (the “Election Period”)Notice, the Indemnifying Person shall be entitled to assume defence of such Third Party shall notify Claim. Upon assuming the Indemnified defence of the Third Party (A) whether Claim as aforesaid, the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim Person shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), take such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party mayaction, at its own cost and expenseexpense with respect to such Third Party Claim, participate inin such manner as it deems fit. Notwithstanding anything contained herein, (A) the Indemnifying Person acknowledges and undertakes that it is liable to indemnify the Indemnified Persons in respect of such Third Party Claim as per the terms hereof and at no point in time, pending such Third Party Claim, should the Indemnified Persons go out of pocket, and (B) the Indemnifying Persons will not enter in to any settlement or compromise with respect to the Third Party Claim (i) without a full release from the relevant Third Party of all liability whatsoever of the Indemnified Persons, and (ii) where such settlement or compromise imposes any non- financial obligation or liability on any Indemnified Persons, without the prior consent in writing of the Indemnified Persons.
c) In the event the Indemnifying Person does not assume the defense of a Third Party Claim nor informs the Indemnified Persons of their intention to do so within a period of 20 (twenty) Business Days from the date of receipt of notice of the Third Party Claim Notice, then the Indemnified Persons shall send a Notice (“Reminder Notice”) to the Indemnifying Person referencing this Clause and asking Indemnifying Person whether they propose to assume the conduct of the defence of the Third Party Claim. If the Indemnifying Person does not respond to such Reminder Notice or assume conduct of the defense of such Third Party Claim, within 7 (seven) Business Days of receipt of the Reminder Notice, the Indemnified Person(s) shall have the right, but not controlthe obligation, any defense or settlement of any to defend themselves against such Third Party Claim controlled by until the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express Person assumes such conduct of defence with mutual written consent of the Indemnified PartyPersons and Indemnifying Person, agree without waiving any right of indemnity against the Indemnifying Person. If any Governmental Authority passes an order or similar adjudication against the Company, with respect to any compromise or settlement which does not include an unconditional release of a Third Party Claim and orders the Indemnified Person(s) to pay the amounts arising from such Third Party from all Damages.
(c) If Claim, then the Indemnifying Party fails to notify Person shall forthwith reimburse the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently amount paid by the Indemnified Person(s) towards such Third Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c)Claim.
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 1 contract
Samples: Share Subscription Agreement
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, 10.1 Where an Indemnified Party has received Notice of any Claim or becomes aware of any matter which may result in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement Claim from any other Person (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditions:
such Indemnified Person shall within 30 (athirty) The Indemnified days of receiving such Notice or becoming aware of any Third Party shallClaim, with reasonable promptness after the Indemnified Party has give written notice of a Claim, (1) notify the such Third Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice in reasonable detail in light of the circumstances then known to the Indemnified Party (a “Third Party Claim Notice”) describing, in reasonable detail, ); provided that the nature failure of such Indemnified Party to provide such notice shall not relieve the Indemnifying Party of its obligations under Clause 5 of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after Agreement.
10.2 Upon receipt of any the Third Party Claim Notice (the “Election Period”)Notice, the Indemnifying Party shall notify be obligated to undertake necessary legal actions to defend the Indemnified Party (A) whether Claim or take such action as may be best suitable in the Indemnifying Party disputes its potential liability circumstances with counsel reasonably satisfactory to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desiresParty, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If ’s sole expense. Notwithstanding the Indemnifying Party notifies foregoing, the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, (i) at its own cost and expense, retain separate counsel to participate in, but not control, in such defence or any defense negotiations or settlement of any Claim controlled by thereunder or (ii) in the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If event the Indemnifying Party fails to notify assume such defense within the period set out in paragraph 8.3(i) below, the Indemnified Party within may assume the Election Period that defense or compromise such Third Party Claim by itself, in which case: (a) the Indemnifying Party elects to assume shall remain liable for the defense costs and expenses of the such Third Party Claim or if the Indemnifying Party elects to assume the defense including all court costs and payment of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(cany interim amounts; (b) shall apply (but not otherwise) and the Indemnified Party shall have the right to defendcontest, at settle, compromise or otherwise dispose of such Third Party Claim without the sole cost and expense consent of the Indemnifying Party.
10.3 The Indemnifying Party shall make the indemnity payment in cash (or such other manner agreed in writing between the Indemnified Party and Indemnifying Party) to the Indemnified Party upon occurrence of earlier of the following: (i) the Indemnifying Party failing to assume defence within 10 (ten) days from the receipt of the Third Party Claim Notice or such other period within which such defense ought to be assumed to comply with requirements mandated by the third party claimant’s notice (where the third party claimant is a Governmental Authority) or otherwise as required under Applicable Law; or (ii) the Indemnifying Party having assumed the defence of the Third Party Claim, where a payment obligation under a Third Party Claim becomes due and payable including pursuant to a judgement, order by any Governmental Authority or arbitral award, in each case, which is not subject to any stay or other legal suspension or postponement, or a settlement or compromise having been consummated. Provided however that during the process of defense of the Third Party Claim, if the Indemnified Party is entitled required to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party incur any costs/expenses (including but not limited to pursuant to a final conclusion notice from any Governmental Authority or settled at interim order passed by a court of law requiring the discretion payment of whole or in part of the Indemnified Party. The Indemnified Third Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayedClaim). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required immediately upon receipt of a notice from the Indemnified Party in this regard, remit the said amounts to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant , subject to Section 5.4.1(c)receipt of documents evidencing such amounts being payable, and or otherwise discharge such Third Party Claim (as per the instructions of the Indemnified Party shall reimburse the Party),
10.4 The Indemnifying Party agrees that it will not, without the prior written consent of the Indemnified Party: (i) make any payment to the relevant third party; (ii) consent to the entry of any judgment; (iii) enter into any settlement, with respect to any such Third Party Claim; and /or (iv) make any filings or written submission, whether independently or in full for all of those costs and expensesresponse to any request or requirement to make such submission with any other third party including a Governmental Authority, with respect to the Third Party Claim.
Appears in 1 contract
Samples: Subscription Agreement
Third Party Claim. The Company Group member’s indemnification obligation pursuant (a) If Buyer's Indemnity Claim involves any Action brought or made by any third party (a "THIRD PARTY CLAIM"), then the RP Equityholders' Agent may elect (by written notice to Section 5.2 Buyer) to assume at its expense the defense of such Third Party Claim using counsel reasonably acceptable to Buyer; provided that the RP Equityholders' Agent may not so elect if Buyer has been pursuing the defense thereof for at least six months and Provider’s indemnification obligation pursuant the RP Equityholders' Agent's assumption of such defense would materially prejudice Buyer or the defense. If the RP Equityholders' Agent does not so elect to Section 5.3assume such defense, then such Third Party Claim shall be defended by Buyer in such manner as it reasonably deems appropriate (and the costs, fees and expenses of Buyer for such defense shall constitute Losses), including entering a reasonable settlement thereof in which event the settlement plus the Buyer's costs, fees and expenses with respect thereto shall be the Loss; provided that Buyer shall not enter into any settlement of such Third Party Claim without the prior written consent of the RP Equityholders' Agent, which consent shall not be unreasonably withheld unless RP and the RP Equityholders have no liability therefor in which case no consent shall be required. RP and the RP Equityholders' Agent shall cooperate with Buyer in connection with such defense and shall permit Buyer to participate therein; provided, that RP (and the RP Equityholders) shall not be liable to Buyer under the provisions hereof for any legal or other expenses incurred by Buyer in connection with Buyer's participation in the defense of such Third Party Claim after the RP Equityholders' Agent has elected to assume the defense thereof so long as the RP Equityholders' Agent is diligently contesting such Third Party Claim in good faith, unless a conflict of interest exists between Buyer and RP (or the RP Equityholders) requiring each of Buyer, on the one hand, and RP or the RP Equityholders, on the other hand, to have separate counsel, in each casewhich case Buyer may engage separate counsel (the fees and costs of which shall be borne by RP (or, solely with respect to Damages claimed RP Equityholder Matters, in the event RP does not or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) cannot pay such fees and costs, by a third party (that third-party claim or assertion, a “Claim”the RP Equityholders in the Designated Proportions), are subject to ). Neither RP nor the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice RP Equityholders' Agent may enter into any settlement of a Claim, (1) notify Third Party Claim without the Party from whom indemnification is sought (the “Indemnifying Party”) prior written consent of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does Buyer which will not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Partyunreasonably withheld.
(b) If Notwithstanding the Indemnifying foregoing, if a Third Party notifies Claim includes or would reasonably be expected to include both a claim for Taxes that are Excluded Taxes and a claim for Taxes that are not Excluded Taxes, and such claim for Taxes that are Excluded Taxes is not separable from such a claim for Taxes that are not Excluded Taxes, the Indemnified Party within RP Equityholders' Agent (if the Election Period claim for Taxes that are Excluded Taxes exceeds or reasonably would be expected to exceed in amount the Indemnifying Party elects claim for Taxes that are not Excluded Taxes) or otherwise Buyer (the RP Equityholders' Agent or Buyer, as the case may be, the "CONTROLLING PARTY") shall be entitled to assume control the defense of the such Third Party Claim (such Third Party Claim, then this Section 5.4.1(ba "TAX CLAIM"). In such case, the other party (the RP Equityholders' Agent or Buyer, as the case may be, the "NON-CONTROLLING PARTY)" shall be entitled to participate fully (at the Non-Controlling Party's sole expense) shall apply (but not otherwise) in the conduct of such Tax Claim and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Controlling Party shall not be liable for any settle such compromise or settlement unless Tax Claim without the consent of such compromise or settlement is made with the Indemnifying Party’s express written consent Non-Controlling Party (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of conducting the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or of such Tax Claim shall be reasonably apportioned based on the Indemnified Party’s defense pursuant to Section 5.4.1(c), relative amounts of the Tax Claim that are Excluded Taxes and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesthat are not Excluded Taxes.
Appears in 1 contract
Samples: Asset Purchase Agreement (Readers Digest Association Inc)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3If any claim, in each caseaction, with respect to Damages claimed suit or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) proceeding is filed or initiated by a third party against any Party entitled to the benefit of indemnity hereunder (that third-party claim or assertioneach, a “Third Party Claim”), are subject written notice thereof shall be given to the following terms indemnifying party as promptly as practicable (and conditions:
in any event within three (a3) The Indemnified Party shall, with reasonable promptness days after the Indemnified service of the citation or summons); provided, however, that the failure of any indemnified party to give timely notice shall not affect rights to indemnification hereunder except to the extent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, if the indemnifying party shall acknowledge in writing to the indemnified party that the indemnifying party shall be obligated under the terms of its indemnity hereunder in connection with such Third Party has notice of a Claim, (1) notify then the Party from whom indemnification is sought (the “Indemnifying Party”) indemnifying party shall be entitled, if it so elects, to take control of the existence defense and investigation of that such Third Party Claim and (B) transmit to employ and engage attorneys of its own choice to handle and defend the same, such attorneys to be reasonably satisfactory to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorizedindemnified party, at the sole cost indemnifying party’s cost, risk and expense of (unless (i) the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects indemnifying party has failed to assume the defense of such Third Party Claim or (ii) the named parties to such Third Party Claim include both of the indemnifying party and the indemnified party, and the indemnified party and its counsel determine in good faith that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party and that joint representation would be inappropriate), and to compromise or settle such Third Party Claim, then which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld. The indemnified party may withhold such consent if such compromise or settlement would adversely affect the conduct of business or requires less than an unconditional release to be obtained. If (i) the indemnifying party fails to assume the defense of such Third Party Claim within 15 days after receipt of notice thereof pursuant to this Section 5.4.1(b11.2, or (ii) shall apply (but not otherwise) the named parties to such Third Party Claim include both the indemnifying party and the Indemnifying indemnified party and the indemnified party and its counsel determine in good faith that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party and that joint representation would be inappropriate, the indemnified party against which such Third Party shall Claim has been filed or initiated will (upon delivering notice to such effect to the indemnifying party) have the right to defendparticipate, at its sole the indemnifying party’s cost and expense (if expense, in the Indemnified defense, compromise or settlement of such Third Party is entitled to indemnification under this Agreement)Claim; provided, however, that such Third Party Claim by all appropriate proceedingsshall not be compromised or settled without the written consent of both the indemnified and the indemnifying party, which proceedings consent shall not be unreasonably withheld. The indemnifying party shall be prosecuted diligently by the Indemnifying liable for any settlement of any Third Party Claim effected pursuant to a final conclusion or settled at the discretion of the Indemnifying Party and in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost 11.2 and expense, participate in, but not control, for any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree final judgment (subject to any compromise or settlement which does not include an unconditional release right of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(cappeal), and the Indemnified Party shall reimburse indemnifying party agrees to indemnify and hold harmless the Indemnifying Party indemnified party from and against any Losses by reason of such settlement or judgment. Regardless of whether the indemnified party participates in full for all of those the defense, the indemnifying party will pay reasonable costs and expensesexpenses in connection with the defense, compromise or settlement for any Third Party Claim under this Section 11.2.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation (a) If Parent's Indemnity Claim involves any Action brought or made by any third party (a "Third Party Claim"), then Clorox may elect (by written notice to Parent delivered within 30 days of notice by Parent to Clorox pursuant to Section 5.2 10.5(a)) to assume at its expense the defense of such Third Party Claim, including discussions with relevant Governmental Authorities, using counsel reasonably acceptable to Parent. If Clorox does not so elect to assume such defense, then such Third Party Claim shall be defended by Parent in such manner as it reasonably deems appropriate (and Provider’s indemnification obligation pursuant the costs, fees and expenses of Parent for such defense shall constitute Damages in accordance with Section 10.4), including entering a reasonable settlement thereof in which event the settlement plus Parent's costs, fees and expenses with respect thereto shall be the Damages in accordance with Section 10.4; provided that Parent shall not enter into any settlement of such Third Party Claim without the prior written consent of Clorox, which consent shall not be unreasonably withheld, unless Clorox and its Affiliates have no liability therefor, are not required to Section 5.3admit any liability and will not be bound by any restrictions or limitations on its or their conduct thereafter, and no negative precedent for future Claims, Actions or litigation against Clorox and its Affiliates will be established, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party which case no consent shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claimbe required. If the Indemnifying Third Party does Claim has been assumed by Clorox, Clorox shall cooperate with Parent in connection with such defense and shall permit Parent to participate therein; provided that Clorox shall not notify be liable to Parent under the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, provisions hereof for any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer legal or other pleadings that expenses incurred by Parent in connection with Parent's participation in the Indemnified defense of such Third Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects Claim after Clorox has elected to assume the defense thereof so long as Clorox is diligently contesting such Third Party Claim in good faith, unless Parent is advised by outside counsel that an actual or potential conflict of interest exists between Parent and Clorox or that there are different or additional defenses available to Parent that are not available to Clorox, in which case Parent may engage separate counsel (the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) reasonable fees and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, disbursements of which proceedings shall be prosecuted diligently borne by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(bClorox). The Indemnified Party may, at its own cost and expense, participate in, but Clorox may not control, enter into any defense or settlement of any such Third Party Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express prior written consent of the Indemnified PartyParent, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned unless Parent and its Affiliates have no liability therefor, are not required to admit any liability and will not be bound by any restrictions or delayed). The Indemnifying Party maylimitations on its or their conduct thereafter, at and no negative precedent for future Claims, Actions or litigation against Parent and its own cost and expenseAffiliates will be established, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c)in which case no consent shall be required.
(db) Notwithstanding anything in this Section 5.4.1 to the contraryIf Clorox's Indemnity Claim involves a Third Party Claim, to the extent then Parent may elect (1) the Indemnifying Party has delivered a by written notice to Clorox delivered within 30 days of notice by Clorox to Parent pursuant to Section 10.5(a)) to assume at its expense the Indemnified defense of such Third Party Claim, including discussions with relevant Governmental Authorities, using counsel reasonably acceptable to Clorox. If Parent does not so elect to assume such defense, then such Third Party Claim shall be defended by Clorox in such manner as it reasonably deems appropriate (and the costs, fees and expenses of Clorox for such defense shall constitute Damages in accordance with Section 10.4), including entering a reasonable settlement thereof in which event the settlement plus Clorox's costs, fees and expenses with respect thereto shall be the Damages in accordance with Section 10.4; provided that Clorox shall not enter into any settlement of such Third Party Claim without the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor prior written consent of the Indemnifying PartyParent, the Indemnifying Party which consent shall not be unreasonably withheld, unless Parent and its Affiliates have no liability therefor, are not required to bear the costs admit any liability and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) will not be bound by any restrictions or the Indemnified Party’s defense pursuant to Section 5.4.1(c)limitations on its or their conduct thereafter, and no negative precedent for future Claims, Actions or litigation against Parent and its Affiliates will be established, in which case no consent shall be required. If the Indemnified Third Party Claim has been assumed by Parent, Parent shall reimburse cooperate with Clorox in connection with such defense and shall permit Clorox to participate therein; provided that Parent shall not be liable to Clorox under the Indemnifying provisions hereof for any legal or other expenses incurred by Clorox in connection with Clorox's participation in the defense of such Third Party Claim after Parent has elected to assume the defense thereof so long as Parent is diligently contesting such Third Party Claim in full good faith, unless Clorox is advised by outside counsel that an actual or potential conflict of interest exists between Clorox and Parent or that there are different or additional defenses available to Clorox that are not available to Parent, in which case Clorox may engage separate counsel (the reasonable fees and disbursements of which shall be borne by Parent). Parent may not enter into any settlement of a Third Party Claim without the prior written consent of Clorox, which shall not be unreasonably withheld, unless Clorox and its Affiliates have no liability therefor, are not required to admit any liability and will not be bound by any restrictions or limitations on its or their conduct thereafter, and no negative precedent for all of those costs future Claims, Actions or litigation against Clorox and expensesits Affiliates will be established, in which case no consent shall be required.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”i) by a third party (that third-party claim or assertion, a “Claim”), are subject to Third Party Claim Review Period In the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice event of a Third Party Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice shall have thirty (a “Claim Notice”30) describing, in reasonable detail, the nature days following its receipt of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any relevant Claim Notice (the “Election Third Party Claim Review Period”), ) to make such investigation of the Indemnifying Party shall underlying claim as it considers necessary or desirable and to notify the Indemnified Party (A) whether the Indemnifying Party or not it disputes its potential liability to the Indemnified Party under this Article 5 with in respect to of such Third Party Claim and (B) whether which notice shall set forth in reasonable detail the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against basis for such Claimobjection). If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party so notifies the Indemnified Party within during the Election Third Party Claim Review Period that the Indemnifying Party elects it disputes its liability to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion in respect of the Indemnifying relevant Third Party in accordance with this Section 5.4.1(b). The Indemnified Party mayClaim, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of initiate proceedings against the Indemnifying Party (if in accordance with Article 8.10. If the Indemnifying Party fails to so notify the Indemnified Party during the Third Party Claim Review Period that it disputes its liability to the Indemnified Party in respect of the relevant Third Party Claim, the Indemnifying Party shall be deemed to have refused its liability to the Indemnified Party in respect of such Third Party Claim.
(ii) Defense of Third Party Claim Until such time, if any, as it is entitled determined or agreed that the Indemnifying Party has no liability to indemnification under this Agreementthe Indemnified Party in respect of a particular Third Party Claim, the Indemnified Party shall, or shall cause the Company to, conduct the defense of such Third Party Claim in good faith using all reasonable means and defenses available to it or to the Company (having due regard for the interests of the Company). The Indemnifying Party shall have the right, if it so notifies the Indemnified Party with reasonable promptness after receipt of the Claim Notice, (a) to be consulted in respect of such Third Party Claim and to participate at its own expense and with counsel of its choice in the defense thereof by the Indemnified Party (or in the case of a Third Party Claim against the Company, by the Company), (b) to take charge, at its own expense, of the Claim defense of the Company, either alone or alongside counsel chosen by all appropriate proceedingsthe Company, with the consent of the Company, which proceedings can only be refused if the Company in good faith believes that such defense by the Indemnifying Party would not be in the best interests of the Company. Such consent shall not be prosecuted diligently unreasonably withheld. In any event, the Indemnified Party shall afford the Indemnifying Party and its counsel the opportunity to comment and the right to object (which right shall not be unreasonably exercised) with respect to the conduct of the defense of the Third Party Claim. The Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any Third Party Claim and its defense, and shall with reasonable promptness provide the Indemnifying Party with copies of all material notices, written communications and filings (including court papers) made by or on behalf of any of the parties to the Third Party Claim. A failure by the Indemnified Party to a final conclusion so take into account any reasonable suggestions or settled at objections made by the discretion of the Indemnified Party. The Indemnified Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided as its consequence that the Indemnifying Party shall not be liable responsible for any Losses resulting from such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Third Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to can demonstrate that such Losses could have been avoided or limited had the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor suggestions or objections of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesbeen followed.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, in each case, with respect to Damages claimed or asserted against a person claiming (a) In the event any claim for indemnification under this Agreement (an “Indemnified Party”) Article VII is based on a claim asserted by a third party (that third-party claim or assertioni.e., a “Claim”Person other than a party hereto or its Affiliates or agents), are subject to the following terms and conditions:
(a) The including any derivative or other Claims brought on behalf of an Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Third-Party Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify have the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability right, exercisable by written notice to the Indemnified Party under this Article 5 with respect to such Claim and within thirty (B30) whether days of receipt of a Claims Notice, in which the Indemnifying Party desiresacknowledges its obligation to indemnify and hold harmless the Indemnified Party in full, to assume and conduct the defense of the underlying Third-Party Claim with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided, that the Indemnified Party may retain separate co-counsel at its sole cost and expenseexpense and participate in the defense of the Third-Party Claim (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assume control of the defense, which, notwithstanding the foregoing, shall be borne by the Indemnifying Party). Notwithstanding the foregoing, the Indemnifying Party shall not have the right to defend assume control of the defense of any Third-Party Claim and shall pay the reasonable fees and out-of-pocket expenses of a single counsel retained by all such Indemnified Parties with respect to such Third-Party Claim if: (i) the Third-Party Claim seeks non-monetary, equitable or injunctive relief, (ii) alleges violations of criminal law, or (iii) includes as the named parties in any such Third-Party Claim both an Indemnified Party against and an Indemnifying Party, and either a defense is available to an Indemnified Party that is not available to an Indemnifying Party or applicable ethical guidelines provide that, in either case, it would be inappropriate to have the same counsel represent both parties. If the Indemnifying Party has assumed such Claimdefense as provided in this Section 7.6(b), the Indemnifying Party will not be liable for any legal expenses subsequently incurred by any Indemnified Party in connection with the defense of such claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying any Third-Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b7.6(b). The , the Indemnified Party may, may continue to defend such claim at its own the reasonable cost of the Indemnifying Party and expense, the Indemnifying Party may still participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the such Third-Party Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own sole cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contrary, to the extent (1) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expenses.
Appears in 1 contract
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 5.2 and Provider’s indemnification obligation pursuant to Section 5.3, (i) If the claim or demand set forth in each case, with respect to Damages claimed the Notice of claim is a claim or demand asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditions:
(a) The Indemnified Party shall, with reasonable promptness Company will have 15 calendar days after the Indemnified Party has notice date of a Claim, (1) notify receipt by the Party from whom indemnification is sought Company of the Notice of Claim (the “Indemnifying PartyNotice Date”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within 30 calendar days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether Parties in writing of the Indemnifying Party disputes its potential liability to election by the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, Company to defend the Indemnified Third Party against such Claim. If the Indemnifying Party does not notify Claim on behalf of the Indemnified Party within the Election Period Parties; provided, however, that the Indemnifying Party disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall Company will be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party.
(b) If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of any such Third Party claim only if it unconditionally and irrevocably undertakes to indemnify all Indemnified Parties in respect thereof.
(ii) If the Company elects to defend a Third Party Claim on behalf of the Indemnified Parties, the Indemnified Parties will make available to the Company and their agents and representatives all records and other materials in their possession which are reasonably required in the defense of the Third Party Claim and the Company will pay all expenses payable in connection with the defense of the Third Party Claim as they are incurred.
(iii) In no event may the Company settle or compromise any Third Party Claim without the Indemnified Parties’ consent, which may not be unreasonably withheld; provided, however, that if a settlement is presented by the Company to the Indemnified Parties for approval, which settlement involves no payment by or liability of the Indemnified Parties or any restriction on the operation of their businesses or assets and includes releases of the Indemnified Parties from any and all liability in connection with such Third Party Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Indemnified Parties withhold their consent thereto, then any amount by which the final Losses (including reasonable attorneys’ fees and charges) resulting from the resolution of the matter exceeds the rejected settlement amount, plus attorneys’ fees incurred to such date, will be excluded from the amount covered by the indemnification provided for in this Agreement and shall be borne by the Indemnified Parties.
(iv) If the Company elects to defend a Third Party shall Claim, the Indemnified Parties will have the right to defendparticipate in the defense of the Third Party Claim, at its sole cost and the Indemnified Parties’ expense (if and without the Indemnified Party is entitled right to indemnification for such expense under this Agreement); provided, however, that the reasonable fees and expenses of counsel retained by the Indemnified Parties will be at the expense of the Company if (A) the use of the counsel chosen by the Company to represent the Indemnified Parties would present such counsel with a conflict of interest; (B) the parties to such proceeding include both Indemnified Parties and the Company and there may be legal defenses available to Indemnified Parties which are different from or additional to those available by the Company; (C) within 10 calendar days after being advised by the Company of the identity of counsel to be retained to represent Indemnified Parties, they shall have objected to the retention of such counsel for valid reasons (which shall be stated in a written notice to the Company), and the Company shall not have retained different counsel satisfactory to the Indemnified Parties; or (D) the Company shall have authorized the Indemnified Parties to retain a single separate counsel at the expense of the Company, such Claim by all appropriate proceedings, which proceedings shall authorization to be prosecuted diligently made by the Indemnifying Party to a final conclusion directors who are not designees of Purchaser or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party may not, without the express written consent of the Indemnified Party, agree to any compromise or settlement which does not include an unconditional release of the Indemnified Party from all DamagesAffiliates.
(cv) If the Indemnifying Company does not elect to defend a Third Party fails to notify Claim, or does not defend a Third Party Claim in good faith, the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified Party shall Parties will have the right, in addition to any other right to defendor remedy it may have hereunder, at the sole cost and exclusive expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the contraryCompany, to the extent (1) the Indemnifying defend such Third Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnifying Party’s defense pursuant to Section 5.4.1(b) or the Indemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall reimburse the Indemnifying Party in full for all of those costs and expensesClaim.
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Samples: Preferred Stock Amendment and Warrant Issuance Agreement (Franklin Covey Co)
