Third Party Claims Procedure. Promptly after the receipt by any Buyer Indemnified Party or Seller Indemnified Party (each, an “Indemnified Party”) of notice of, or threat of, the commencement of any action or proceeding against such Indemnified Party by a third party, such Indemnified Party shall, if a claim with respect thereto is or may be made against any indemnifying party (the “Indemnifying Party”) pursuant to this ARTICLE VII, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process (or threat thereof) and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this ARTICLE VII, except where, and solely to the extent that, such failure actually prejudices the rights of such Indemnifying Party. If such Indemnifying Party acknowledges responsibility for indemnification pursuant to this ARTICLE VII with respect to such claim and/or process within twenty (20) days of such notice, such Indemnifying Party shall have the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnified Party, any such matter involving the asserted Liability of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to participate in the defense or such asserted Liability at the Indemnified Party’s own expense. In any event, the Indemnified Party and its counsel and such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted Liability. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, or shall not respond within twenty (20) days of notice of such claim, in accordance with the provisions hereof, any of the Indemnified Parties may undertake such defense and the Indemnifying Party shall be responsible for reimbursing the Indemnified Parties for their reasonable legal fees and expenses in connection therewith as and when such fees and expenses are incurred by them. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the sole right to settle the claim, subject to obtaining the consent of the Indemnified Party; provided, however, that if the Indemnified Party shall fail to consent to the settlement of such a claim by the Indemnifying Party, which settlement (i) the claimant has indicated it will accept, (ii) does not relate to Xx. Xxxxxxxx or Xxxx Xxxxxxxx and (iii) includes an unconditional release of the Indemnified Party by the claimant and imposes no restrictions on the future activities and does not materially and adversely affect the Tax Liability for future periods of the Indemnified Party and its Affiliates, the Indemnifying Party may enter into such settlement without the Indemnified Party’s consent. If the Indemnified Party is defending the claim as set forth above, the Indemnified Party shall have the sole right to settle or compromise any claim, subject to obtaining consent to the settlement of such claim by the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned).
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Nutri System Inc /De/)
Third Party Claims Procedure. Promptly after the receipt by any Buyer Indemnified Party or Seller Indemnified Party (each, an “Indemnified Party”) of The indemnified party shall give notice of, or threat of, the commencement of any action or proceeding against such Indemnified Party by a third party, such Indemnified Party shall, if a claim with respect thereto is or may be made against any indemnifying party (the “Indemnifying PartyIndemnity Notice”) pursuant to this ARTICLE VII, give such Indemnifying the indemnifying party specifying the particulars of any Third Party written notice claim within ten (10) days after it receives notification of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process (or threat thereof) and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this ARTICLE VII, except where, and solely to the extent that, such failure actually prejudices the rights of such Indemnifying Party. If such Indemnifying Party acknowledges responsibility for indemnification pursuant to this ARTICLE VII with respect to such claim and/or process within twenty (20) days of such notice, such Indemnifying Party shall have the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnified Party, any such matter involving the asserted Liability of the Indemnified Partyclaim; provided, however, that failure to give such notice within such time period shall not prejudice the Indemnified Party rights of the indemnified party except to the extent that the failure to give such notice materially adversely affects the ability of the indemnifying party to defend the claim or to cure the breach of the representation, warranty, covenant or obligation giving rise to the claim. Subject to the terms of this Section 7.8, the indemnifying party shall have sole control over the right defense and settlement of such claim. The indemnifying party may not settle or compromise the claim without the prior written consent of the indemnified party unless such settlement or compromise (i) involves no payment (whether by cash, securities or other instrument), assignment, granting of a license or admission of fault or wrongdoing by the indemnified party and (ii) the indemnified party receives a comprehensive general release of all claims from the applicable third parties. The indemnified party shall provide to participate the indemnifying party, in confidence, all files, books, records and other information in its possession or control which may be relevant to the defense of such claim. The indemnified party shall co-operate in all reasonable respects in the defense or of such asserted Liability claim but at the Indemnified Party’s own expenseexpense of the indemnifying party. In any event, If the Indemnified Party and its counsel and indemnifying party fails to diligently defend such Indemnifying Party and its counsel shall cooperate in claim throughout the defense against, or compromise of, any such asserted Liability. In the event period that such Indemnifying Party claim exists, its right to defend the claim shall decline to participate in or terminate and the indemnified party may assume the defense of such actionclaim at the sole expense of the indemnifying party. In such event, the indemnified party may compromise or shall not respond within twenty (20) days of notice of settle such claim, in accordance with the provisions hereof, any of the Indemnified Parties may undertake such defense and the Indemnifying Party shall be responsible for reimbursing the Indemnified Parties for their reasonable legal fees and expenses in connection therewith as and when such fees and expenses are incurred by them. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the sole right to settle the claim, subject to obtaining without the consent of the Indemnified Party; provided, however, that if the Indemnified Party shall fail to consent to the settlement of such a claim by the Indemnifying Party, which settlement (i) the claimant has indicated it will accept, (ii) does not relate to Xx. Xxxxxxxx or Xxxx Xxxxxxxx and (iii) includes an unconditional release of the Indemnified Party by the claimant and imposes no restrictions on the future activities and does not materially and adversely affect the Tax Liability for future periods of the Indemnified Party and its Affiliates, the Indemnifying Party may enter into such settlement without the Indemnified Party’s consent. If the Indemnified Party is defending the claim as set forth above, the Indemnified Party shall have the sole right to settle or compromise any claim, subject to obtaining consent to the settlement of such claim by the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned)indemnifying party.
Appears in 2 contracts
Samples: Supplemental Royalty Interest Assignment Agreement (Nanogen Inc), Royalty Interest Assignment Agreement (Nanogen Inc)
Third Party Claims Procedure. (i) Promptly (and in any event within five days after the receipt by service of any Buyer summons or other document) after acquiring knowledge of any third party Action for which one or more of either a BCC Indemnified Party or Seller a Trupet Indemnified Party (each, an the “Third Party Indemnified Party”) of notice of, or threat of, the commencement of any action or proceeding may seek indemnification against such Indemnified Party by a third party, such Indemnified Party shall, if a claim with respect thereto is or may be made against any indemnifying party other Parties (the “Third Party Indemnifying Party”) pursuant to this ARTICLE VIISection 5.7, the Third Party Indemnified Party shall give such Indemnifying Party written notice of thereof to the commencement of such action or proceeding and give such Third Party Indemnifying Party a copy of such claim and/or process (or threat thereof) and all legal pleadings in connection therewithParty. The failure Failure to give such provide notice shall not relieve any the Third Party Indemnifying Party of any of its indemnification obligations contained in under this ARTICLE VIISection 5.7, except where, and solely to the extent that, such failure actually prejudices the rights of such Indemnifying Partyany actual damage caused by that failure. If such Indemnifying The Third Party acknowledges responsibility for indemnification pursuant to this ARTICLE VII with respect to such claim and/or process within twenty (20) days of such notice, such Indemnifying Party shall have the right to defend, at its own expense and by its own counsel assume the defense of any Action with one law firm reasonably acceptable to the Third Party Indemnified Party upon delivery of notice to that effect to the Third Party Indemnified Party. If the Third Party Indemnifying Party, after written notice from the Third Party Indemnified Party, any fails to take timely action to defend the action resulting from the Action or otherwise respond to the Action, or if the Third Party Indemnifying Party’s counsel has reasonably determined that there may be a conflict between the Third Party Indemnified Party and the Third Party Indemnifying Party in the defense of such matter involving Action, the asserted Liability of the Indemnified Party; provided, however, that the Third Party Indemnified Party shall have the right to participate in defend the defense or such asserted Liability action resulting from the Action by counsel of its own choosing, but at the Indemnified Party’s own expense. In any event, the Indemnified Party cost and its counsel and such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted Liability. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, or shall not respond within twenty (20) days of notice of such claim, in accordance with the provisions hereof, any expense of the Indemnified Parties may undertake such defense and the Indemnifying Third Party shall be responsible for reimbursing the Indemnified Parties for their reasonable legal fees and expenses in connection therewith as and when such fees and expenses are incurred by them. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the sole right to settle the claim, subject to obtaining the consent of the Indemnified Party; provided, however, that if the Indemnified Party shall fail to consent to the settlement of such a claim by the Indemnifying Party, which settlement (i) the claimant has indicated it will accept, (ii) does not relate to Xx. Xxxxxxxx or Xxxx Xxxxxxxx and (iii) includes an unconditional release of the Indemnified The Third Party by the claimant and imposes no restrictions on the future activities and does not materially and adversely affect the Tax Liability for future periods of the Indemnified Party and its Affiliates, the Indemnifying Party may enter into such settlement without the Indemnified Party’s consent. If the Indemnified Party is defending the claim as set forth above, the Indemnified Party shall have the sole right to settle or compromise any claimAction against it, subject to obtaining consent and recover from the Third Party Indemnifying Party any amount paid in settlement or compromise thereof, if it has given written notice thereof to the Third Party Indemnifying Party and the Third Party Indemnifying Party has failed to take timely action to defend the Action; otherwise, the Third Party Indemnified Party shall have no right to settle or compromise any Action. The Third Party Indemnifying Party shall have the right to settle or compromise any Action against the Third Party Indemnified Party without the consent of the Third Party Indemnified Party provided that the terms of the settlement or compromise provide for the unconditional release of such claim the Third Party Indemnified Party, require the payment of monetary damages only, is not likely to result in criminal proceedings and is not likely to have a Material Adverse Effect on the Third Party Indemnified Party or its business.
(ii) Upon its receipt of any amount paid by the Third Party Indemnifying Party (pursuant to this Section 5.7, the Third Party Indemnified Party shall deliver to the Third Party Indemnifying Party such documents as it may reasonably request assigning to the Third Party Indemnifying Party any and all rights, to the extent indemnified, that the Third Party Indemnified Party may have against third parties with respect to the Proceeding for which consent shall not be unreasonably withheld, delayed or conditioned)indemnification is being received.
Appears in 2 contracts
Samples: Securities Exchange Agreement (Better Choice Co Inc.), Securities Exchange Agreement (Better Choice Co Inc.)
Third Party Claims Procedure. (i) Promptly (and in any event within five days after the receipt by service of any Buyer summons or other document) after acquiring knowledge of any third party Action for which one or more of either a BCC Indemnified Party or Seller a Bona Vida Indemnified Party (each, an the “Third Party Indemnified Party”) of notice ofmay seek indemnification against the Bona Vida Shareholders or BCC, or threat of, the commencement of any action or proceeding against such Indemnified Party by a third party, such Indemnified Party shall, if a claim with respect thereto is or may be made against any indemnifying party respectively (the “Third Party Indemnifying Party”) pursuant to this ARTICLE VIISection 5.6, the Third Party Indemnified Party shall give such Indemnifying Party written notice of thereof to the commencement of such action or proceeding and give such Third Party Indemnifying Party a copy of such claim and/or process (or threat thereof) and all legal pleadings in connection therewithParty. The failure Failure to give such provide notice shall not relieve any the Third Party Indemnifying Party of any of its indemnification obligations contained in under this ARTICLE VIISection 5.6, except where, and solely to the extent that, such failure actually prejudices the rights of such Indemnifying Partyany actual damage caused by that failure. If such Indemnifying The Third Party acknowledges responsibility for indemnification pursuant to this ARTICLE VII with respect to such claim and/or process within twenty (20) days of such notice, such Indemnifying Party shall have the right to defend, at its own expense and by its own counsel assume the defense of any Action with one law firm reasonably acceptable to the Third Party Indemnified Party upon delivery of notice to that effect to the Third Party Indemnified Party. If the Third Party Indemnifying Party, after written notice from the Third Party Indemnified Party, any fails to take timely action to defend the action resulting from the Action or otherwise respond to the Action, or if the Third Party Indemnifying Party’s counsel has reasonably determined that there may be a conflict between the Third Party Indemnified Party and the Third Party Indemnifying Party in the defense of such matter involving Action, the asserted Liability of the Indemnified Party; provided, however, that the Third Party Indemnified Party shall have the right to participate in defend the defense or such asserted Liability action resulting from the Action by counsel of its own choosing, but at the Indemnified Party’s own expense. In any event, the Indemnified Party cost and its counsel and such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted Liability. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, or shall not respond within twenty (20) days of notice of such claim, in accordance with the provisions hereof, any expense of the Indemnified Parties may undertake such defense and the Indemnifying Third Party shall be responsible for reimbursing the Indemnified Parties for their reasonable legal fees and expenses in connection therewith as and when such fees and expenses are incurred by them. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the sole right to settle the claim, subject to obtaining the consent of the Indemnified Party; provided, however, that if the Indemnified Party shall fail to consent to the settlement of such a claim by the Indemnifying Party, which settlement (i) the claimant has indicated it will accept, (ii) does not relate to Xx. Xxxxxxxx or Xxxx Xxxxxxxx and (iii) includes an unconditional release of the Indemnified The Third Party by the claimant and imposes no restrictions on the future activities and does not materially and adversely affect the Tax Liability for future periods of the Indemnified Party and its Affiliates, the Indemnifying Party may enter into such settlement without the Indemnified Party’s consent. If the Indemnified Party is defending the claim as set forth above, the Indemnified Party shall have the sole right to settle or compromise any claimAction against it, subject to obtaining consent and recover from the Third Party Indemnifying Party any amount paid in settlement or compromise thereof, if it has given written notice thereof to the Third Party Indemnifying Party and the Third Party Indemnifying Party has failed to take timely action to defend the Action; otherwise, the Third Party Indemnified Party shall have no right to settle or compromise any Action. The Third Party Indemnifying Party shall have the right to settle or compromise any Action against the Third Party Indemnified Party without the consent of the Third Party Indemnified Party provided that the terms of the settlement or compromise provide for the unconditional release of such claim the Third Party Indemnified Party, require the payment of monetary damages only, is not likely to result in criminal proceedings and is not likely to have a Material Adverse Effect on the Third Party Indemnified Party or its business.
(ii) Upon its receipt of any amount paid by the Third Party Indemnifying Party (pursuant to this Section 5.6, the Third Party Indemnified Party shall deliver to the Third Party Indemnifying Party such documents as it may reasonably request assigning to the Third Party Indemnifying Party any and all rights, to the extent indemnified, that the Third Party Indemnified Party may have against third parties with respect to the Proceeding for which consent shall not be unreasonably withheld, delayed or conditioned)indemnification is being received.
Appears in 2 contracts
Samples: Merger Agreement (Better Choice Co Inc.), Merger Agreement (Better Choice Co Inc.)
Third Party Claims Procedure. (a) Promptly after following the receipt by any Buyer Indemnified Party or Seller Indemnified Party (each, an “Indemnified Party”) of notice of, or threat ofof a Third Party Claim for which it may seek indemnification hereunder, the commencement of any action or proceeding against such Indemnified Party by a third party, such Indemnified Party shall, if a claim with respect thereto is or may be made against any indemnifying party (receiving the “Indemnifying Party”) pursuant to this ARTICLE VII, give such Indemnifying Party written notice of the commencement Third Party Claim shall notify the Indemnifying Party of such action or proceeding and give such Indemnifying Third Party a copy of such claim and/or process (or threat thereof) and all legal pleadings Claim explaining in connection therewithreasonable detail the Third Party Claim. The failure to give such notice shall not relieve any the Indemnifying Party of any of its indemnification obligations contained in under this ARTICLE VII, Agreement except where, and solely to the extent that, such failure actually prejudices that the rights of such Indemnifying Party. If such Indemnifying Party acknowledges responsibility for indemnification is prejudiced as a result of the failure to give such notice. Within 15 business days after receipt of the notice by the Indemnifying Party pursuant to this ARTICLE VII with respect to such claim and/or process within twenty (20) days of such noticethe preceding sentence, such the Indemnifying Party shall have the right to defend, at its own expense and by its own counsel reasonably acceptable to notify the Indemnified PartyParty whether it elects to undertake the defense of the Third Party Claim; provided that the Indemnifying Party may so elect to undertake the defense of -------- ---- such claim without the consent of the Indemnified Party only if such claim involves money damages and if the adverse determination of such claim, any such matter involving singly or in the asserted Liability aggregate, would not reasonably be expected to have a Material Adverse Effect on the business of the Indemnified Party; provided, howeverfurther, that the -------- ------- Indemnifying Party must elect to undertake the defense of any Third Party Claims relating to Section 8.3(c). Each Indemnified Party shall make available to the Indemnifying Party all information reasonably available to it relating to such Third Party Claim. In addition, the parties hereunder shall render to each other such assistance as may reasonably be requested in order to ensure the proper and adequate defense of any such action or claim. If the Indemnifying Party elects to undertake the defense of such Third Party Claim, it shall do so at its own expense with counsel of its own choosing and it shall acknowledge in writing its indemnification obligations as provided in this Agreement to the Indemnified Party as to such Third Party Claim. If the Indemnifying Party elects not to defend such Third 42 Party Claim or fails to pursue the defense of such Third Party Claim diligently, the Indemnified Party shall have the right to participate in the defense or such asserted Liability at the Indemnified Party’s own expense. In any event, the Indemnified Party and its counsel and such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted Liability. In the event that such Indemnifying Party shall decline to participate in or assume undertake the defense of such action, or Third Party Claim through counsel of its own choosing. The party that defends the Third Party Claim shall not respond within twenty (20) days keep the other party fully advised of notice the progress and disposition of such claim.
(b) In the event the Indemnifying Party elects not to undertake the defense of a Third Party Claim or fails to pursue diligently the defense of such claim and the Indemnified Party litigates or otherwise contests or settles the Third Party Claim, then, the Indemnifying Party shall promptly reimburse the Indemnified Party for all Damages, including any amounts paid to litigate or otherwise contest or settle such claim and all amounts paid in satisfaction of a judgment against the Indemnified Party in contesting such claim and in providing its right to indemnification hereunder, all in accordance with the provisions hereof, any of the Indemnified Parties may undertake such defense and this Article VIII.
(c) No Third Party Claim will be settled by the Indemnifying Party shall be responsible for reimbursing or the Indemnified Parties for their reasonable legal fees and expenses in connection therewith as and when Party without the consent of the other, which consent will not be unreasonably withheld or delayed; provided, however, -------- that if such fees and expenses are incurred by them. If claim asserts that the Indemnifying Party is defending jointly and severally liable and the claim as set forth aboveIndemnified Party shall be fully released from all liability relating to such Third Party Claim in connection with such settlement, the Indemnifying Party shall have the sole right not be required to settle the claim, subject to obtaining obtain the consent of the Indemnified Party; provided, however, that if . The party in charge of the Indemnified Party defense or any settlement negotiations shall fail to consent keep the other party apprised at all times as to the settlement of such a claim by the Indemnifying Party, which settlement (i) the claimant has indicated it will accept, (ii) does not relate to Xx. Xxxxxxxx or Xxxx Xxxxxxxx and (iii) includes an unconditional release status of the Indemnified Party by the claimant and imposes no restrictions on the future activities and does not materially and adversely affect the Tax Liability for future periods of the Indemnified Party and its Affiliates, the Indemnifying Party may enter into such defense or any settlement without the Indemnified Party’s consent. If the Indemnified Party is defending the claim as set forth above, the Indemnified Party shall have the sole right to settle or compromise any claim, subject to obtaining consent to the settlement of such claim by the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned)negotiations with respect thereto.
Appears in 1 contract
Third Party Claims Procedure. Promptly after the receipt by any Buyer Indemnified Party or Seller Indemnified Party (each, an “Indemnified Party”) of The indemnified party shall give notice of, or threat of, the commencement of any action or proceeding against such Indemnified Party by a third party, such Indemnified Party shall, if a claim with respect thereto is or may be made against any indemnifying party (the “Indemnifying PartyIndemnity Notice”) pursuant to this ARTICLE VII, give such Indemnifying the indemnifying party specifying the particulars of any Third Party written notice claim within ten (10) days after it receives notification of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process (or threat thereof) and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this ARTICLE VII, except where, and solely to the extent that, such failure actually prejudices the rights of such Indemnifying Party. If such Indemnifying Party acknowledges responsibility for indemnification pursuant to this ARTICLE VII with respect to such claim and/or process within twenty (20) days of such notice, such Indemnifying Party shall have the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnified Party, any such matter involving the asserted Liability of the Indemnified Partyclaim; provided, however, that failure to give such notice within such time period shall not prejudice the Indemnified Party rights of the indemnified party except to the extent that the failure to give such notice materially adversely affects the ability of the indemnifying party to defend the claim or to cure the breach of the representation, warranty, covenant or obligation giving rise to the claim. Subject to the terms of this Section 8.8, the indemnifying party shall have sole control over the right defense and settlement of such claim. The indemnifying party may not settle or compromise the claim without the prior written consent of the indemnified party unless such settlement or compromise (i) involves no payment (whether by cash, securities or other instrument), assignment, granting of a license or admission of fault or wrongdoing by the indemnified party and (ii) the indemnified party receives a comprehensive general release of all claims from the applicable third parties. The indemnified party shall provide to participate the indemnifying party, in confidence, all files, books, records and other information in its possession or control which may be relevant to the defense of such claim. The indemnified party shall co-operate in all reasonable respects in the defense or of such asserted Liability claim but at the Indemnified Party’s own expenseexpense of the indemnifying party. In any event, If the Indemnified Party and its counsel and indemnifying party fails to diligently defend such Indemnifying Party and its counsel shall cooperate in claim throughout the defense against, or compromise of, any such asserted Liability. In the event period that such Indemnifying Party claim exists, its right to defend the claim shall decline to participate in or terminate and the indemnified party may assume the defense of such actionclaim at the sole expense of the indemnifying party. In such event, the indemnified party may compromise or shall not respond within twenty (20) days of notice of settle such claim, in accordance with the provisions hereof, any of the Indemnified Parties may undertake such defense and the Indemnifying Party shall be responsible for reimbursing the Indemnified Parties for their reasonable legal fees and expenses in connection therewith as and when such fees and expenses are incurred by them. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the sole right to settle the claim, subject to obtaining without the consent of the Indemnified Party; provided, however, that if the Indemnified Party shall fail to consent to the settlement of such a claim by the Indemnifying Party, which settlement (i) the claimant has indicated it will accept, (ii) does not relate to Xx. Xxxxxxxx or Xxxx Xxxxxxxx and (iii) includes an unconditional release of the Indemnified Party by the claimant and imposes no restrictions on the future activities and does not materially and adversely affect the Tax Liability for future periods of the Indemnified Party and its Affiliates, the Indemnifying Party may enter into such settlement without the Indemnified Party’s consent. If the Indemnified Party is defending the claim as set forth above, the Indemnified Party shall have the sole right to settle or compromise any claim, subject to obtaining consent to the settlement of such claim by the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned)indemnifying party.
Appears in 1 contract
Samples: Royalty Interest Assignment Agreement (Nanogen Inc)
Third Party Claims Procedure. (a) Promptly (and in any event within five days after the receipt by service of any Buyer Indemnified Party summons or Seller Indemnified Party other document) after acquiring knowledge of any third party Claim for which one or more of the Parties (each, an the “Indemnified Party”) of notice of, or threat of, the commencement of any action or proceeding may seek indemnification against such Indemnified Party by a third party, such Indemnified Party shall, if a claim with respect thereto is or may be made against any indemnifying party other Parties (the “Indemnifying Party”) pursuant to this ARTICLE VIIArticle 5, the Indemnified Party shall give such Indemnifying Party written notice of thereof to the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process (or threat thereof) and all legal pleadings in connection therewithParty. The failure Failure to give such provide notice shall not relieve any the Indemnifying Party of any of its indemnification obligations contained in under this ARTICLE VIISection 5.2, except where, and solely to the extent that, such failure actually prejudices that the rights of such Indemnifying Party. If such Indemnifying Party acknowledges responsibility for indemnification pursuant to this ARTICLE VII with respect to such claim and/or process within twenty (20) days of such notice, such demonstrates actual damage caused by that failure. The Indemnifying Party shall have the right to defend, at its own expense and by its own assume the defense of any Claim with counsel reasonably acceptable to the Indemnified Party, any such matter involving the asserted Liability Party upon delivery of notice to that effect to the Indemnified Party; provided. If the Indemnifying Party, howeverafter written notice from the Indemnified Party, that fails to take timely action to defend the action resulting from the Claim or otherwise respond to the Claim, the Indemnified Party shall have the right to participate in defend the defense or such asserted Liability action resulting from the Claim by counsel of its own choosing, but at the cost and expense of the Indemnifying Party. The Indemnified Party’s own expense. In Party shall have the right to settle or compromise any eventClaim against it, and recover from the Indemnifying Party any amount paid in settlement or compromise thereof, if it has given written notice thereof to the Indemnifying Party and the Indemnifying Party has failed to take timely action to defend the Claim; otherwise, the Indemnified Party and its counsel and such Indemnifying Party and its counsel shall cooperate in the defense against, have no right to settle or compromise of, any such asserted LiabilityClaim. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, or shall not respond within twenty (20) days of notice of such claim, in accordance with the provisions hereof, any of the Indemnified Parties may undertake such defense and the Indemnifying Party shall be responsible for reimbursing the Indemnified Parties for their reasonable legal fees and expenses in connection therewith as and when such fees and expenses are incurred by them. If the Indemnifying Party is defending the claim as set forth above, the The Indemnifying Party shall have the sole right to settle or compromise any claim against the claim, subject to obtaining Indemnified Party without the consent of the Indemnified Party; provided, however, Party provided that if the Indemnified Party shall fail to consent to terms of the settlement of such a claim by or compromise provide for the Indemnifying Party, which settlement (i) the claimant has indicated it will accept, (ii) does not relate to Xx. Xxxxxxxx or Xxxx Xxxxxxxx and (iii) includes an unconditional release of the Indemnified Party and require the payment of monetary damages only.
(b) Upon its receipt of any amount paid by the claimant and imposes no restrictions on the future activities and does not materially and adversely affect the Tax Liability for future periods of the Indemnified Party and its Affiliates, the Indemnifying Party may enter into such settlement without the Indemnified Party’s consent. If the Indemnified Party is defending the claim as set forth abovepursuant to this Article 5, the Indemnified Party shall have the sole right deliver to settle or compromise any claim, subject to obtaining consent to the settlement of such claim by the Indemnifying Party such documents as it may reasonably request assigning to the Indemnifying Party any and all rights, to the extent indemnified, that the Indemnified Party may have against third parties with respect to the Claim for which indemnification is being received.
(which consent c) In the event that the Claim is asserted by one of the Parties to this Agreement either based on a direct Claim by a Party or a third party Claim, the procedure set forth in this Section 5.2(c) shall not control. The Cocrystal Designees or the RFSP Designees (or their successors), as those terms are defined herein, may initiate an arbitration proceeding (pursuant to Section 7.12) on behalf of Parent or the RFSP Members, as the case may be, alleging a breach of this Agreement and seeking to reduce or increase the Merger Consideration as a result of the breach, pursuant to and subject to Section 5.3. Such arbitration proceeding shall be unreasonably withheld, delayed or conditioned)pursuant to the terms and procedures as set forth below in Section 7.12.
(d) For purposes of this Agreement the Cocrystal Designee shall be authorized to provide notices on behalf of Parent and Cocrystal following the Closing and the RFSP Designees shall be authorized to provide notices on behalf of RFSP.
Appears in 1 contract
Third Party Claims Procedure. Promptly (a) If the Indemnified Party seeks indemnity under this Article VIII in response to a claim or Proceeding by another Person that is not a party hereto (a “Third Party Claim”), then the Indemnified Party will give a Claim Notice to the Indemnifying Party within thirty (30) days after the receipt by any Buyer Indemnified Party or Seller Indemnified has received notice of the assertion of such Third Party Claim (each, an “Indemnified Party”) of notice of, or threat of, the commencement of any action or proceeding against and becomes aware that such Indemnified Party by a third party, such Indemnified Party shall, if a claim with respect thereto is or may be made against any indemnifying entitled to indemnification therefor hereunder) and will include in the Claim Notice (i) the facts constituting the basis for such Third Party Claim and the amount of the damages claimed by the other Person, in each case to the extent known to the Indemnified Party, accompanied by reasonable supporting documentation submitted by such third party (to the “Indemnifying extent then in the possession of the Indemnified Party”), and (ii) pursuant to this ARTICLE VII, give such Indemnifying Party written the assertion of the claim or the notice of the commencement of any Proceeding relating to such action Third Party Claim; provided, that no delay or proceeding and give such deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party a copy of such claim and/or process (or threat thereof) and all legal pleadings in connection therewith. The failure to give such notice shall not will relieve any the Indemnifying Party of any of its indemnification obligations contained in Liability under this ARTICLE VII, Agreement except where, and solely to the extent that, such failure actually delay or deficiency prejudices the rights defense of such Indemnifying Party. If such Proceeding.
(b) In the event of a Third Party Claim, the Indemnifying Party acknowledges responsibility for indemnification pursuant will be entitled to this ARTICLE VII with respect to such claim and/or process within twenty (20) days participate in the defense thereof, and may assume control of such notice, defense if: (i) such Indemnifying Third Party shall have the right to defend, at its own expense Claim involves only monetary damages and by its own counsel reasonably acceptable to does not seek (A) an injunction or other equitable relief against the Indemnified Party, or (B) a finding or admission of a violation of any criminal Law by the Indemnified Party; (ii) such Third Party Claim is reasonably likely to result in Losses that, taken with any other then existing claims under this Article VIII, would be fully indemnified hereunder; (iii) in the reasonable opinion of counsel to the Indemnified Party there is no actual or potential nonwaivable conflict that exists between the Indemnified Party and the Indemnifying Party in connection with the defense of such Third Party Claim; (iv) such Third Party Claim does not relate to a Material Customer or Material Supplier; (v) such Third Party Claim does not relate to Taxes (in which case the defense of such Third Party Claim shall be subject to Section 6.15(d)); and (vi) the Indemnifying Party (x) elects in writing to assume control of such defense within thirty (30) days after the delivery of the Claim Notice and (y) acknowledges in writing that it would be required to indemnify the Indemnified Party for all Losses in connection with such Third Party Claim. Notwithstanding any such matter involving assumption of the asserted Liability defense of a Third Party Claim by the Indemnifying Party, the Indemnified Party shall be entitled to participate in such defense at its own cost and expense. The Indemnifying Party will not agree to any settlement of, or consent to the entry of any Governmental Order (other than an Governmental Order of dismissal on the merits without costs) arising from, any Third Party Claim without the prior written consent of the Indemnified Party; provided, howeverthat the consent of the Indemnified Party will not be required if (x) the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or Governmental Order, (y) such settlement or Governmental Order includes a full, complete and unconditional release of the Indemnified Party from any further Liability related to such Third Party Claim, and (z) such settlement or Governmental Order does not impose any injunctive relief or other restrictions of any kind or nature on any Indemnified Party.
(c) If the Indemnifying Party does not, within thirty (30) days after its receipt of a Claim Notice with respect to a Third Party Claim, elect in writing to the Indemnified Party to assume control of the defense of such Third Party Claim and acknowledge in writing that it would be required to indemnify the Indemnified Party for all Losses in connection with such Third Party Claim, then the Indemnified Party shall have the right to participate in retain separate counsel of its choosing, defend such Third Party Claim and have the sole power to direct and control such defense or such asserted Liability (all at the Indemnified Party’s own expense. In any event, cost and expense of the Indemnifying Party if it is ultimately determined that the Indemnified Party and its counsel and such Indemnifying is entitled to indemnification hereunder); provided, that the Indemnified Party and its counsel shall cooperate in the defense againstwill not agree to any settlement of, or compromise ofthe entry of any Governmental Order (other than an Governmental Order of dismissal on the merits without costs) arising from, any such asserted Liability. In Third Party Claim without the event that such prior written consent of the Indemnifying Party shall decline (such consent not to participate in be unreasonably withheld, conditioned or assume the defense of such action, or shall not respond within twenty delayed).
(20d) days of notice of such claim, in accordance with the provisions hereof, any of the The Indemnified Parties may undertake such defense Party and the Indemnifying Party shall be responsible for reimbursing reasonably cooperate in order to ensure the proper and adequate defense of a Third Party Claim, including by providing reasonable access to each other’s relevant books and records and employees, in each case, upon reasonable advance notice on a mutually convenient basis during normal business hours. The Indemnified Parties for their reasonable legal fees Party and expenses in connection therewith as and when such fees and expenses are incurred by them. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the sole right use reasonable efforts to settle the claimavoid production of confidential information (consistent with applicable Law), subject and to obtaining the consent of the Indemnified Party; providedcause all communications among employees, howevercounsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding this Section 8.06, that if the Indemnified Party Section 6.15(d) shall fail to consent to the settlement of such a claim by the Indemnifying Party, which settlement exclusively govern any and all Tax Claims (i) the claimant has indicated it will accept, (ii) does and not relate to Xx. Xxxxxxxx or Xxxx Xxxxxxxx and (iii) includes an unconditional release of the Indemnified Party by the claimant and imposes no restrictions on the future activities and does not materially and adversely affect the Tax Liability for future periods of the Indemnified Party and its Affiliates, the Indemnifying Party may enter into such settlement without the Indemnified Party’s consent. If the Indemnified Party is defending the claim as set forth above, the Indemnified Party shall have the sole right to settle or compromise any claim, subject to obtaining consent to the settlement of such claim by the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditionedthis Section 8.06).
Appears in 1 contract
Samples: Stock Purchase Agreement (EnerSys)
Third Party Claims Procedure. (a) Promptly (and in any event within five days after the receipt by service of any Buyer Indemnified Party summons or Seller Indemnified Party other document) after acquiring knowledge of any third party Claim for which one or more of the Parties (each, an “the "Indemnified Party”") of notice of, or threat of, the commencement of any action or proceeding may seek indemnification against such Indemnified Party by a third party, such Indemnified Party shall, if a claim with respect thereto is or may be made against any indemnifying party other Parties (the “"Indemnifying Party”") pursuant to this ARTICLE VIIArticle V, the Indemnified Party shall give such Indemnifying Party written notice of thereof to the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process (or threat thereof) and all legal pleadings in connection therewithParty. The failure Failure to give such provide notice shall not relieve any the Indemnifying Party of any of its indemnification obligations contained in under this ARTICLE VIISection 5.2, except where, and solely to the extent that, such failure actually prejudices that the rights of such Indemnifying Party. If such Indemnifying Party acknowledges responsibility for indemnification pursuant to this ARTICLE VII with respect to such claim and/or process within twenty (20) days of such notice, such demonstrates actual damage caused by that failure. The Indemnifying Party shall have the right to defend, at its own expense and by its own assume the defense of any Claim with counsel reasonably acceptable to the Indemnified Party, any such matter involving the asserted Liability Party upon delivery of notice to that effect to the Indemnified Party; provided. If the Indemnifying Party, howeverafter written notice from the Indemnified Party, that fails to take timely action to defend the action resulting from the Claim or otherwise respond to the Claim, the Indemnified Party shall have the right to participate in defend the defense or such asserted Liability action resulting from the Claim by counsel of its own choosing, but at the cost and expense of the Indemnifying Party. The Indemnified Party’s own expense. In Party shall have the right to settle or compromise any eventClaim against it, and recover from the Indemnifying Party any amount paid in settlement or compromise thereof, if it has given written notice thereof to the Indemnifying Party and the Indemnifying Party has failed to take timely action to defend the Claim; otherwise, the Indemnified Party and its counsel and such Indemnifying Party and its counsel shall cooperate in the defense against, have no right to settle or compromise of, any such asserted LiabilityClaim. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, or shall not respond within twenty (20) days of notice of such claim, in accordance with the provisions hereof, any of the Indemnified Parties may undertake such defense and the Indemnifying Party shall be responsible for reimbursing the Indemnified Parties for their reasonable legal fees and expenses in connection therewith as and when such fees and expenses are incurred by them. If the Indemnifying Party is defending the claim as set forth above, the The Indemnifying Party shall have the sole right to settle or compromise any claim against the claim, subject to obtaining Indemnified Party without the consent of the Indemnified Party; provided, however, Party provided that if the Indemnified Party shall fail to consent to terms of the settlement of such a claim by or compromise provide for the Indemnifying Party, which settlement (i) the claimant has indicated it will accept, (ii) does not relate to Xx. Xxxxxxxx or Xxxx Xxxxxxxx and (iii) includes an unconditional release of the Indemnified Party and require the payment of monetary damages only.
(b) Upon its receipt of any amount paid by the claimant and imposes no restrictions on the future activities and does not materially and adversely affect the Tax Liability for future periods of the Indemnified Party and its Affiliates, the Indemnifying Party may enter into such settlement without the Indemnified Party’s consent. If the Indemnified Party is defending the claim as set forth abovepursuant to this Article V, the Indemnified Party shall have the sole right deliver to settle or compromise any claim, subject to obtaining consent to the settlement of such claim by the Indemnifying Party such documents as it may reasonably request assigning to the Indemnifying Party any and all rights, to the extent indemnified, that the Indemnified Party may have against third parties with respect to the Claim for which indemnification is being received.
(which consent c) In the event that the Claim is asserted by one of the Parties to this Agreement either based on a direct Claim by a Party or a third party Claim, the procedure set forth in this Section 5.2(c) shall not control. The ENTK Designees or the Timefire Designees (or their successors), as those terms are defined herein, may initiate an arbitration proceeding (pursuant to Section 7.12) on behalf of ENTK or the Timefire Members, as the case may be, alleging a breach of this Agreement and seeking to reduce or increase the Timefire Merger Consideration as a result of the breach, pursuant to and subject to Section 5.3. Such arbitration proceeding shall be unreasonably withheld, delayed or conditioned)pursuant to the terms and procedures as set forth below in Section 7.7.
(d) For purposes of this Agreement the ENTK Designee shall be authorized to provide notices on behalf of ENTK following the Closing and the Timefire Designees shall be authorized to provide notices on behalf of Timefire.
Appears in 1 contract
Samples: Merger Agreement (EnergyTEK Corp.)
Third Party Claims Procedure. Promptly after the receipt by any Buyer Indemnified Party or Seller Indemnified Party (each, an “Indemnified Party”) of notice of, or threat of, the commencement of any action or proceeding against such Indemnified Party by a third party, such Indemnified Party shall, if a claim with respect thereto is or may be made against any indemnifying party (the “Indemnifying Party”) pursuant to this ARTICLE VII, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process (or threat thereof) and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this ARTICLE VII, except where, and solely to the extent that, such failure actually prejudices the rights of such Indemnifying Party. If such Indemnifying Party acknowledges responsibility for indemnification pursuant to this ARTICLE VII with respect to such claim and/or process within twenty (20) days of such notice, such Indemnifying Party shall have the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnified Party, any such matter involving the asserted Liability of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to participate in the defense or such asserted Liability at the Indemnified Party’s own expense. In any event, the Indemnified Party and its counsel and such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted Liability. In the event that such Indemnifying any Indemnified Party shall decline to participate in or assume the defense of such action, or shall not respond within twenty (20) days of notice of such claim, in accordance with the provisions hereof, any of the Indemnified Parties may undertake such defense and the Indemnifying seeks indemnification hereunder based on a Third Party shall be responsible for reimbursing the Indemnified Parties for their reasonable legal fees and expenses in connection therewith as and when such fees and expenses are incurred by them. If the Indemnifying Party is defending the claim as set forth aboveClaim, the Indemnifying Party shall have the sole right (without prejudice to settle the claim, subject to obtaining the consent right of the Indemnified Party to employ separate counsel at its own expense and to participate in the defense of such Third Party Claim and in any compromise, settlement or strategic decision relating thereto) to control the defense or prosecution of such Third Party Claim at its own expense through counsel of its own choosing if the Indemnifying Party gives notice thereof to the Indemnified Party within thirty (30) days after receipt of the Third Party Claim Notice, or such shorter time period as required so that the interests of the Indemnified Party would not be materially prejudiced as a result of the failure to have received such notice (the “Election Period”). Notwithstanding the preceding sentence, the Indemnified Party is hereby authorized during the Election Period to file any motion, answer or other pleading that shall be necessary or appropriate to protect its rights or the rights of the Indemnifying Party; provided. If (i) the Election Period expires, howeveror (ii) the Indemnifying Party notifies the Indemnified Party during the Election Period that the Indemnifying Party does not elect to defend or prosecute the Third Party Claim for which the Indemnified Party would be entitled to indemnification hereunder, that if then the Indemnified Party shall fail to consent to be entitled prosecute or defend the settlement of such a claim by the Indemnifying Party, which settlement (i) the claimant has indicated it will accept, (ii) does not relate to Xx. Xxxxxxxx or Xxxx Xxxxxxxx Third Party Claim and (iii) includes an unconditional release of the Indemnified Party by the claimant and imposes no restrictions on the future activities and does not materially and adversely affect the Tax Liability for future periods of the Indemnified Party and its Affiliates, recover from the Indemnifying Party may enter into such settlement without all of the Indemnified Partyreasonable costs and expenses (including reasonable attorney’s consent. If the Indemnified Party is defending the claim as set forth above, the Indemnified Party shall have the sole right to settle or compromise any claim, subject to obtaining consent to the settlement of such claim by the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned)fees) associated therewith.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Tollgrade Communications Inc \Pa\)
Third Party Claims Procedure. Promptly after In the receipt by event that any Buyer Indemnified Party or Seller seeks indemnification hereunder based on a Third Party Claim, the Indemnifying Party shall have the right (without prejudice to the right of the Indemnified Party to employ separate counsel at its own expense and to participate in the defense of such Third Party Claim and in any compromise, settlement or strategic decision relating thereto) to defend or prosecute such Third Party Claim at its own expense through counsel of its own choosing if the Indemnifying Party gives notice thereof to the Indemnified Party within thirty (each, an “30) days after receipt of the Third Party Claim Notice or such shorter time period as required so that the interests of the Indemnified Party”) Party would not be materially prejudiced as a result of the failure to have received such notice of, or threat of(the "ELECTION PERIOD"). Notwithstanding the preceding sentence, the commencement of any action or proceeding against such Indemnified Party by a third partyis hereby authorized during the Election Period to file any motion, such Indemnified Party shall, if a claim with respect thereto is answer or may other pleading that shall be made against any indemnifying party (the “Indemnifying Party”) pursuant necessary or appropriate to this ARTICLE VII, give such Indemnifying Party written notice of the commencement of such action protect its rights or proceeding and give such Indemnifying Party a copy of such claim and/or process (or threat thereof) and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this ARTICLE VII, except where, and solely to the extent that, such failure actually prejudices the rights of such the Indemnifying Party. If such (i) the Election Period expires or (ii) the Indemnifying Party acknowledges responsibility notifies the Indemnified Party during the Election Period that the Indemnifying Party does not elect to defend or prosecute the Third Party Claim for which the Indemnified Party would be entitled to indemnification hereunder, then the Indemnified Party shall be entitled prosecute or defend the Third Party Claim and recover from the Indemnifying Party all of the reasonable costs and expenses (including reasonable attorney's fees) associated therewith. Notwithstanding the assumption of the defense of any Third Party Claim by the Indemnified Party pursuant to this ARTICLE VII with respect to such claim and/or process within twenty (20) days of such noticeparagraph, such the Indemnifying Party shall have the right to defend, at its own expense and by its own counsel reasonably acceptable to approve the Indemnified Party, any such matter involving the asserted Liability terms of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to participate in the defense or such asserted Liability at the Indemnified Party’s own expense. In any event, the Indemnified Party and its counsel and such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted Liability. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, or shall not respond within twenty (20) days of notice of such claim, in accordance with the provisions hereof, any of the Indemnified Parties may undertake such defense and the Indemnifying Party shall be responsible for reimbursing the Indemnified Parties for their reasonable legal fees and expenses in connection therewith as and when such fees and expenses are incurred by them. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the sole right to settle the claim, subject to obtaining the consent of the Indemnified Party; provided, however, that if the Indemnified Party shall fail to consent to the settlement of such a claim by the Indemnifying Partyany Third Party Claim, which settlement (i) the claimant has indicated it will accept, (ii) does not relate to Xx. Xxxxxxxx or Xxxx Xxxxxxxx and (iii) includes an unconditional release of the Indemnified Party by the claimant and imposes no restrictions on the future activities and does not materially and adversely affect the Tax Liability for future periods of the Indemnified Party and its Affiliates, the Indemnifying Party may enter into such settlement without the Indemnified Party’s consent. If the Indemnified Party is defending the claim as set forth above, the Indemnified Party shall have the sole right to settle or compromise any claim, subject to obtaining consent to the settlement of such claim by the Indemnifying Party (which consent approval shall not be unreasonably withheld, delayed or conditioned)withheld.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Tollgrade Communications Inc \Pa\)
Third Party Claims Procedure. (a) Promptly (and in any event within five days after the receipt by service of any Buyer Indemnified Party summons or Seller Indemnified Party other document) after acquiring knowledge of any third party Claim for which one or more of the Parties (each, an the “Indemnified Party”) of notice of, or threat of, the commencement of any action or proceeding may seek indemnification against such Indemnified Party by a third party, such Indemnified Party shall, if a claim with respect thereto is or may be made against any indemnifying party other Parties (the “Indemnifying Party”) pursuant to this ARTICLE VIIArticle V, the Indemnified Party shall give such Indemnifying Party written notice of thereof to the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process (or threat thereof) and all legal pleadings in connection therewithParty. The failure Failure to give such provide notice shall not relieve any the Indemnifying Party of any of its indemnification obligations contained in under this ARTICLE VIISection 5.2, except where, and solely to the extent that, such failure actually prejudices that the rights of such Indemnifying Party. If such Indemnifying Party acknowledges responsibility for indemnification pursuant to this ARTICLE VII with respect to such claim and/or process within twenty (20) days of such notice, such demonstrates actual damage caused by that failure. The Indemnifying Party shall have the right to defend, at its own expense and by its own assume the defense of any Claim with counsel reasonably acceptable to the Indemnified Party, any such matter involving the asserted Liability Party upon delivery of notice to that effect to the Indemnified Party; provided. If the Indemnifying Party, howeverafter written notice from the Indemnified Party, that fails to take timely action to defend the action resulting from the Claim or otherwise respond to the Claim, the Indemnified Party shall have the right to participate in defend the defense or such asserted Liability action resulting from the Claim by counsel of its own choosing, but at the cost and expense of the Indemnifying Party. The Indemnified Party’s own expense. In Party shall have the right to settle or compromise any eventClaim against it, and recover from the Indemnifying Party any amount paid in settlement or compromise thereof, if it has given written notice thereof to the Indemnifying Party and the Indemnifying Party has failed to take timely action to defend the Claim; otherwise, the Indemnified Party and its counsel and such Indemnifying Party and its counsel shall cooperate in the defense against, have no right to settle or compromise of, any such asserted LiabilityClaim. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, or shall not respond within twenty (20) days of notice of such claim, in accordance with the provisions hereof, any of the Indemnified Parties may undertake such defense and the Indemnifying Party shall be responsible for reimbursing the Indemnified Parties for their reasonable legal fees and expenses in connection therewith as and when such fees and expenses are incurred by them. If the Indemnifying Party is defending the claim as set forth above, the The Indemnifying Party shall have the sole right to settle or compromise any claim against the claim, subject to obtaining Indemnified Party without the consent of the Indemnified Party; provided, however, Party provided that if the Indemnified Party shall fail to consent to terms of the settlement of such a claim by or compromise provide for the Indemnifying Party, which settlement (i) the claimant has indicated it will accept, (ii) does not relate to Xx. Xxxxxxxx or Xxxx Xxxxxxxx and (iii) includes an unconditional release of the Indemnified Party and require the payment of monetary damages only.
(b) Upon its receipt of any amount paid by the claimant and imposes no restrictions on the future activities and does not materially and adversely affect the Tax Liability for future periods of the Indemnified Party and its Affiliates, the Indemnifying Party may enter into such settlement without the Indemnified Party’s consent. If the Indemnified Party is defending the claim as set forth abovepursuant to this Article V, the Indemnified Party shall deliver to the Indemnifying Party such documents as it may reasonably request assigning to the Indemnifying Party any and all rights, to the extent indemnified, that the Indemnified Party may have against third parties with respect to the sole right Claim for which indemnification is being received.
(c) Xxxx Xxxx shall be appointed as representative and attorney-in-fact to act on behalf of Truli (the “Truli Representative”) with respect to any Claim asserted by Truli arising out of or relating to this Agreement and the transactions contemplated thereby and shall be authorized to initiate the Action or proceeding on behalf of Truli alleging a breach of this Agreement and seeking to reduce the Merger Consideration as a result of such breach, subject to Section 5.3, and to take any and all actions and make any decisions required or permitted to be taken by Truli Representative pursuant to this Agreement, including the exercise of the power to give and receive notices and communications; agree to, negotiate, enter into settlements and compromises of, and comply with orders with respect to claims for indemnification pursuant to this Agreement; litigate, arbitrate, resolve, settle or compromise any claimclaim for indemnification pursuant to this Agreement; engage, subject employ or appoint any agents or representatives (including attorneys, accountants and consultants) to obtaining consent to assist Truli Representative in complying with his duties and obligations; and take all actions necessary or appropriate in the settlement good faith judgment of such claim by Truli Representative for the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned)accomplishment of the foregoing.
Appears in 1 contract
Third Party Claims Procedure. The obligations of the parties provided for in Section 9.2 in respect of Claims made or asserted by a third party (“Third-Party Claims”) shall be performed in accordance with the following procedures:
(a) Promptly after the receipt by any Buyer Indemnified Party or Seller Indemnified Party the Person entitled to indemnification (each, an the “Indemnified Party”) of notice of, information regarding a Third-Party Claim or threat of, the commencement of any action or proceeding Proceeding involving such a Claim that could reasonably be expected to give rise to Losses and Expenses against such which the Indemnified Party by a third partymay be entitled to indemnification under this Article IX, such the Indemnified Party shall, if a claim with respect thereto is or may be made against any indemnifying party shall deliver to the Person obligated to provide such indemnification (the “Indemnifying Party”) pursuant to this ARTICLE VII, give such Indemnifying Party a written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process (or threat thereof) and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this ARTICLE VII, except where, and solely to the extent that, such failure actually prejudices the rights of such Indemnifying Party. If such Indemnifying Party acknowledges responsibility for indemnification pursuant to this ARTICLE VII with respect to such claim and/or process within twenty (20) days Third-Party Claim, which notice shall state with specificity the nature of such notice, such the Claim and the basis therefor and provide a reasonably detailed statement of the facts required in order for the Indemnifying Party shall have to evaluate the right Claim and make a determination of whether to defend, at its own expense and by its own counsel reasonably acceptable to assume the Indemnified Party, any such matter involving the asserted Liability of the Indemnified Partydefense thereof; provided, however, that the Indemnified Party shall have the right omission so to participate in the defense or such asserted Liability at the Indemnified Party’s own expense. In any event, the Indemnified Party and its counsel and such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted Liability. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, or shall not respond within twenty (20) days of notice of such claim, in accordance with the provisions hereof, any of the Indemnified Parties may undertake such defense and notify the Indemnifying Party shall be responsible for reimbursing not relieve it from any liability that it may have to the Indemnified Parties for their reasonable legal fees and expenses in connection therewith as and when such fees and expenses are incurred by them. If Party except to the extent that the Indemnifying Party is defending the claim as set forth above, the prejudiced by such omission.
(b) An Indemnifying Party shall have not, without the sole right to settle the claim, subject to obtaining the prior written consent of the Indemnified Party; providedParty (which consent shall not be unreasonably withheld or delayed), howeversettle, that if compromise or consent to the entry of any judgment with respect to any pending or threatened Proceeding in respect of which indemnification may be sought by the Indemnified Party shall fail hereunder (whether or not the Indemnified Party is an actual or potential party to such Proceeding) unless such settlement, compromise or consent to the settlement of such a claim by the Indemnifying Party, which settlement (i) the claimant has indicated it will accept, (ii) does not relate to Xx. Xxxxxxxx or Xxxx Xxxxxxxx and (iii) includes an unconditional release of the Indemnified Party from all liability arising out of such Proceeding. An Indemnified Party shall not, without the prior written consent of the Indemnifying Party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Proceeding in respect of which indemnification may be sought by the claimant Indemnified Party hereunder, but, if such Proceeding is settled or compromised or there is entered any judgment with respect to any such Proceeding, in any such case with the consent of the Indemnifying Party, or if a final judgment shall be rendered for the plaintiff in any such Proceeding, the Indemnifying Party agrees to indemnify and imposes no restrictions on hold harmless any Indemnified Party from and against any Loss or Expenses by reason of such settlement, compromise or judgment in accordance with and subject to the future activities provisions of this Article IX.
(c) If a Proceeding shall be brought against an Indemnified Party and does not materially it shall notify the Indemnifying Party thereof in accordance with subsection (a) of this Section 9.3, then the Indemnifying Party shall be entitled to assume the legal defense thereof at the expense of the Indemnifying Party with counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such Proceeding and adversely affect participate in the Tax Liability for future periods defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party and unless (i) the employment of such counsel at its Affiliatesexpense shall have been specifically authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party may enter into shall have failed to assume the defense of such settlement without the Indemnified Party’s consent. If Proceeding or employ counsel reasonably satisfactory to the Indemnified Party within a reasonable period after the Indemnified Party acknowledges that it is defending entitled to do so or (iii) the claim as set forth abovenamed parties to any such Proceeding (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party shall have the sole right been advised by such counsel that there is one or more legal defenses available to settle or compromise it that are in conflict in any claim, subject to obtaining consent material respect with those available to the settlement Indemnifying Party such that an assertion of such claim legal defenses by the Indemnifying Party on behalf of the Indemnified Party could reasonably be expected to result in material prejudice to the Indemnified Party. In any such case, the Indemnifying Party shall not, in connection with any one action or separate but substantially similar or related actions arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (which consent in addition to any local counsel) for the Indemnified Party. Except as provided in the immediately preceding sentence, after notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such Proceeding, the Indemnifying Party shall not be unreasonably withheldliable to the Indemnified Party under this Article IX for any attorney’s fees or other Expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party does not assume the defense of a Proceeding, delayed or conditioned)the Indemnified Party may require the Indemnifying Party to reimburse it on a current basis for its reasonable Expenses incurred in the defense thereof.
Appears in 1 contract
Samples: Joint Venture Interest Purchase Agreement (Eagle Materials Inc)
Third Party Claims Procedure. (a) Promptly after following the receipt by any Buyer Indemnified Party or Seller Indemnified Party (each, an “Indemnified Party”) of notice of, or threat ofof a Third Party Claim for which it may seek indemnification hereunder, the commencement of any action or proceeding against such Indemnified Party by a third party, such Indemnified Party shall, if a claim with respect thereto is or may be made against any indemnifying party (receiving the “Indemnifying Party”) pursuant to this ARTICLE VII, give such Indemnifying Party written notice of the commencement Third Party Claim shall notify the Indemnifying Party of such action or proceeding and give such Indemnifying Third Party a copy of such claim and/or process (or threat thereof) and all legal pleadings Claim explaining in connection therewithreasonable detail the Third Party Claim. The failure to give such notice shall not relieve any the Indemnifying Party of any of its indemnification obligations contained in under this ARTICLE VII, Agreement except where, and solely to the extent that, such failure actually prejudices that the rights of such Indemnifying Party. If such Indemnifying Party acknowledges responsibility for indemnification is prejudiced as a result of the failure to give such notice. Within 15 business days after receipt of the notice by the Indemnifying Party pursuant to this ARTICLE VII with respect to such claim and/or process within twenty (20) days of such noticethe preceding sentence, such the Indemnifying Party shall have the right to defend, at its own expense and by its own counsel reasonably acceptable to notify the Indemnified PartyParty whether it elects to undertake the defense of the Third Party Claim; provided that the Indemnifying Party may so elect to undertake the defense of such claim without the consent of the Indemnified Party only if such claim involves money damages and if the adverse determination of such claim, any such matter involving singly or in the asserted Liability aggregate, would not reasonably be expected to have a Material Adverse Effect on the business of the Indemnified Party; provided, howeverfurther, that the Indemnifying Party must elect to undertake the defense of any Third Party Claims relating to Section 8.3(c). Each Indemnified Party shall make available to the Indemnifying Party all information reasonably available to it relating to such Third Party Claim. In addition, the parties hereunder shall render to each other such assistance as may reasonably be requested in order to ensure the proper and adequate defense of any such action or claim. If the Indemnifying Party elects to undertake the defense of such Third Party Claim, it shall do so at its own expense with counsel of its own choosing and it shall acknowledge in writing its indemnification obligations as provided in this Agreement to the Indemnified Party as to such Third Party Claim. If the Indemnifying Party elects not to defend such Third Party Claim or fails to pursue the defense of such Third Party Claim diligently, the Indemnified Party shall have the right to participate in the defense or such asserted Liability at the Indemnified Party’s own expense. In any event, the Indemnified Party and its counsel and such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted Liability. In the event that such Indemnifying Party shall decline to participate in or assume undertake the defense of such action, or Third Party Claim through counsel of its own choosing. The party that defends the Third Party Claim shall not respond within twenty (20) days keep the other party fully advised of notice the progress and disposition of such claim.
(b) In the event the Indemnifying Party elects not to undertake the defense of a Third Party Claim or fails to pursue diligently the defense of such claim and the Indemnified Party litigates or otherwise contests or settles the Third Party Claim, then the Indemnifying Party shall promptly reimburse the Indemnified Party for all Damages, including any amounts paid to litigate or otherwise contest or settle such claim and all amounts paid in satisfaction of a judgment against the Indemnified Party in contesting such claim and in providing its right to indemnification hereunder, all in accordance with the provisions hereof, any of the Indemnified Parties may undertake such defense and this Article VIII.
(c) No Third Party Claim will be settled by the Indemnifying Party shall be responsible for reimbursing or the Indemnified Parties for their reasonable legal fees and expenses in connection therewith as and when such fees and expenses are incurred by them. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the sole right to settle the claim, subject to obtaining without the consent of the Indemnified Partyother, which consent will not be unreasonably withheld or delayed; provided, however, that if such claim asserts that the Indemnifying Party is jointly and severally liable and the Indemnified Party shall fail be fully released from all liability relating to consent to the settlement of such a claim by the Indemnifying Party, which settlement (i) the claimant has indicated it will accept, (ii) does not relate to Xx. Xxxxxxxx or Xxxx Xxxxxxxx and (iii) includes an unconditional release of the Indemnified Third Party by the claimant and imposes no restrictions on the future activities and does not materially and adversely affect the Tax Liability for future periods of the Indemnified Party and its AffiliatesClaim in connection with such settlement, the Indemnifying Party may enter into such settlement without shall not be required to obtain the consent of the Indemnified Party’s consent. If The party in charge of the Indemnified Party is defending defense or any settlement negotiations shall keep the claim other party apprised at all times as set forth above, the Indemnified Party shall have the sole right to settle or compromise any claim, subject to obtaining consent to the status of the defense or any settlement of such claim by the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned)negotiations with respect thereto.
Appears in 1 contract
Third Party Claims Procedure. Promptly after In the receipt by event that any Buyer Indemnified Party or Seller seeks indemnification hereunder based on a Third Party Claim, the Indemnifying Party shall have the right (without prejudice to the right of the Indemnified Party (eachto employ separate counsel at its own expense and to participate in the defense of such Third Party Claim and in any compromise, an “settlement or strategic decision relating thereto; provided that if the Indemnified Party reasonably determines that representation by the Indemnifying Party’s counsel of the Indemnifying Party and the Indemnified Party may present such counsel with a conflict of interests, then the Indemnifying Party shall pay the reasonable fees and expenses of the Indemnified Party”’s counsel) to defend or prosecute such Third Party Claim at its own expense through counsel of its own choosing if the Indemnifying Party gives notice of, or threat of, thereof to the commencement of any action or proceeding against such Indemnified Party by a third party, within thirty (30) days after receipt of the Third Party Claim Notice or such shorter time period as required so that the interests of the Indemnified Party shall, if would not be materially prejudiced as a claim with respect thereto is or may be made against any indemnifying party result of the failure to have received such notice (the “Indemnifying PartyElection Period”) pursuant ). Notwithstanding the preceding sentence, the Indemnified Party is hereby authorized during the Election Period to this ARTICLE VIIfile any motion, give such Indemnifying Party written notice of the commencement of such action answer or proceeding and give such Indemnifying Party a copy of such claim and/or process (other pleading that shall be necessary or threat thereof) and all legal pleadings in connection therewith. The failure appropriate to give such notice shall not relieve any Indemnifying Party of any of protect its indemnification obligations contained in this ARTICLE VII, except where, and solely to the extent that, such failure actually prejudices rights or the rights of such the Indemnifying Party. If such (i) the Election Period expires or (ii) the Indemnifying Party acknowledges responsibility notifies the Indemnified Party during the Election Period that the Indemnifying Party does not elect to defend or prosecute the Third Party Claim for which the Indemnified Party would be entitled to indemnification hereunder, then the Indemnified Party shall be entitled prosecute or defend the Third Party Claim and recover from the Indemnifying Party all of the reasonable costs and expenses (including reasonable attorney’s fees) associated therewith. Notwithstanding the assumption of the defense of any Third Party Claim by the Indemnified Party pursuant to this ARTICLE VII with respect to such claim and/or process within twenty (20) days of such noticeparagraph, such the Indemnifying Party shall have the right to defendapprove the terms of settlement of any Third Party Claim, at its own expense and by its own counsel reasonably acceptable to which approval shall not be unreasonably delayed or withheld. So long as the Indemnified Party, Indemnifying Party is contesting any such matter involving the asserted Liability of the Indemnified Party; providedclaim in good faith, however, that the Indemnified Party shall have not pay or settle any such claim without the right to participate in the defense or such asserted Liability at the Indemnified Indemnifying Party’s own expense. In any eventconsent, the Indemnified Party and its counsel and such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted Liability. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, or which consent shall not respond within twenty (20) days of notice of such claim, in accordance with the provisions hereof, any of the Indemnified Parties may undertake such defense and the Indemnifying Party shall to be responsible for reimbursing the Indemnified Parties for their reasonable legal fees and expenses in connection therewith as and when such fees and expenses are incurred by themunreasonably delayed or withheld. If the Indemnifying Party is defending not contesting such claim in good faith, then the claim as set forth aboveIndemnified Party may conduct and control, through counsel of their own choosing and at the expense of the Indemnifying Party, the settlement or defense thereof, and the Indemnifying Party shall have the sole right to settle the claim, subject to obtaining the consent of the Indemnified Party; provided, however, that if the Indemnified Party shall fail to consent to the settlement of such a claim by the Indemnifying Party, which settlement (i) the claimant has indicated it will accept, (ii) does not relate to Xxcooperate with them in connection therewith. Xxxxxxxx or Xxxx Xxxxxxxx and (iii) includes an unconditional release The failure of the Indemnified Party by the claimant and imposes no restrictions on the future activities and does to participate in, conduct or control such defense shall not materially and adversely affect the Tax Liability for future periods of the Indemnified Party and its Affiliates, relieve the Indemnifying Party of any obligation they may enter into such settlement without the Indemnified Party’s consent. If the Indemnified Party is defending the claim as set forth above, the Indemnified Party shall have the sole right to settle or compromise any claim, subject to obtaining consent to the settlement of such claim by the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned)hereunder.
Appears in 1 contract
Third Party Claims Procedure. Promptly after (a) If any Indemnitee receives notice of the receipt by assertion of any Buyer Indemnified Party claim or Seller Indemnified Party (each, an “Indemnified Party”) of notice of, or threat of, the commencement of any action claim, action, or proceeding against such Indemnified made or brought by any Person who is not a Party by or an Affiliate of a third party, such Indemnified Party shall, if (a claim “Third Party Claim”) with respect thereto to which indemnification is or may to be made against any indemnifying party (the “sought from an Indemnifying Party”) pursuant to this ARTICLE VII, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 5 Business Days after the Indemnitee’s receipt of the commencement notice of such action or proceeding and give such Indemnifying Third Party a copy of such claim and/or process (or threat thereof) and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this ARTICLE VII, except where, and solely to the extent that, such failure actually prejudices the rights of such Indemnifying Party. If such Indemnifying Party acknowledges responsibility for indemnification pursuant to this ARTICLE VII with respect to such claim and/or process within twenty (20) days of such notice, such Indemnifying Party shall have the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnified Party, any such matter involving the asserted Liability of the Indemnified PartyClaim; provided, however, that a failure to give timely notice will not affect the Indemnified rights or obligations of any Indemnitee except if, and only to the extent that, as a result of such failure, the Indemnifying Party was actually prejudiced. Such notice shall have describe the right nature of the Third Party Claim in reasonable detail and will indicate the estimated amount, if practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee.
(b) If a Third Party Claim is made against an Indemnitee, the Indemnifying Party will be entitled to participate in the defense or such asserted Liability at the Indemnified Party’s own expense. In any eventthereof and, the Indemnified Party and its counsel and such Indemnifying Party and its counsel shall cooperate in the defense againstif it so chooses, or compromise of, any such asserted Liability. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, or shall not respond thereof at its sole cost and expense with counsel selected by the Indemnifying Party by delivering written notice to the Indemnitee within twenty (20) 30 days of receiving notice of such claim, in accordance with the provisions hereof, any of the Indemnified Parties may undertake such defense and the Indemnifying Third Party shall be responsible for reimbursing the Indemnified Parties for their reasonable legal fees and expenses in connection therewith as and when such fees and expenses are incurred by themClaim from Indemnitee. If the Indemnifying Party is defending elects to assume the claim as set forth abovedefense of a Third Party Claim, the Indemnitee (i) will cooperate in all reasonable respects with the Indemnifying Party shall have the sole right to settle the claimin connection with such defense and (ii) will not admit any liability with respect to, subject to obtaining the consent of the Indemnified Party; providedor settle, howevercompromise or discharge, that if the Indemnified any Third Party shall fail to consent to the settlement of such a claim by Claim without the Indemnifying Party’s prior written consent, which settlement (i) the claimant has indicated it will accept, (ii) does not relate to Xx. Xxxxxxxx or Xxxx Xxxxxxxx and (iii) includes an unconditional release of the Indemnified Party by the claimant and imposes no restrictions on the future activities and does not materially and adversely affect the Tax Liability for future periods of the Indemnified Party and its Affiliates, the Indemnifying Party may enter into such settlement without the Indemnified Party’s consent. If the Indemnified Party is defending the claim as set forth above, the Indemnified Party shall have the sole right to settle or compromise any claim, subject to obtaining consent to the settlement of such claim by the Indemnifying Party (which consent shall not be unreasonably withheld, delayed conditioned or conditioned).delayed, and the Indemnifying Party will not compromise or settle such Third Party Claim without the Indemnitee’s written consent, which shall not be unreasonably withheld, conditioned or delayed, unless such compromise or settlement by its terms (A) obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, (B) releases the affected Indemnitees completely and unconditionally in connection with such Third Party Claim and (C) does not impose any injunctive or other equitable relief on the Indemnitee. In the event the Indemnifying Party shall assume the defense of any Third Party Claim, the Indemnitee shall be entitled to participate in (but not control) such defense with its own counsel at its own expense. The Indemnifying Party shall keep such Indemnitee reasonably apprised of the status of the claim, liability or expense and any resulting suit, proceeding or enforcement action. If the Indemnifying Party elects not to assume the defense of any such Third Party Claim or fails to respond to Indemnitee within the specified 30-day period, then (i) the Indemnitee may defend the same as it may deem appropriate with counsel of its own choice, including settling such claim or litigation in a reasonable manner after giving notice to the Indemnifying Party of the terms of the proposed settlement and (ii) if the underlying claim is an Indemnifiable Loss, the Indemnifying Party will reimburse the Indemnitee for the Indemnitee’s reasonable expenses in defending the
Appears in 1 contract
Third Party Claims Procedure. (a) Promptly after following the receipt by any Buyer Indemnified Party or Seller Indemnified Party (each, an “Indemnified Party”) of notice of, or threat ofof a Third Party Claim for which it may seek indemnification hereunder, the commencement of any action or proceeding against such Indemnified Party by a third party, such Indemnified Party shall, if a claim with respect thereto is or may be made against any indemnifying party (receiving the “Indemnifying Party”) pursuant to this ARTICLE VII, give such Indemnifying Party written notice of the commencement Third Party Claim shall notify the Indemnifying Party of such action or proceeding and give such Indemnifying Third Party a copy of such claim and/or process (or threat thereof) and all legal pleadings Claim explaining in connection therewithreasonable detail the Third Party Claim. The failure to give such notice shall not relieve any the Indemnifying Party of any of its indemnification obligations contained in under this ARTICLE VII, Agreement except where, and solely to the extent that, such failure actually prejudices that the rights of such Indemnifying Party. If such Indemnifying Party acknowledges responsibility for indemnification is prejudiced as a result of the failure to give such notice. Within 15 business days after receipt of the notice by the Indemnifying Party pursuant to this ARTICLE VII with respect to such claim and/or process within twenty (20) days of such noticethe preceding sentence, such the Indemnifying Party shall notify the Indemnified Party whether it elects to undertake the defense of the Third Party Claim; provided that the Indemnifying Party may so elect to undertake the defense of such claim without the consent of the Indemnified Party only if such claim involves solely money damages and if the adverse determination of such claim, singly or in the aggregate, would not reasonably be expected to have a material adverse effect on the right business of the Indemnified Party. Each Indemnified Party shall make available to defendthe Indemnifying Party all information reasonably available to it relating to such Third Party Claim. In addition, the parties hereunder shall render to each other such assistance as may reasonably be requested in order to ensure the proper and adequate defense of any such action or claim. If the Indemnifying Party elects to undertake the defense of such Third Party Claim, it shall do so at its own expense and by with counsel of its own counsel reasonably acceptable choosing and it shall acknowledge in writing its indemnification obligations as provided in this Agreement to the Indemnified PartyParty as to such Third Party Claim. If the Indemnifying Party elects not to defend such Third Party Claim or fails to pursue the defense of such Third Party Claim diligently, any such matter involving the asserted Liability of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to participate in the defense or such asserted Liability at the Indemnified Party’s own expense. In any event, the Indemnified Party and its counsel and such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted Liability. In the event that such Indemnifying Party shall decline to participate in or assume undertake the defense of such action, or Third Party Claim through counsel of its own choosing. The Party that defends the Third Party Claim shall not respond within twenty (20) days keep the other Party fully advised of notice the progress and disposition of such claim.
(b) In the event the Indemnifying Party elects not to undertake the defense of a Third Party Claim or fails to pursue diligently the defense of such claim and the Indemnified Party litigates or otherwise contests or settles the Third Party Claim, then, the Indemnifying Party shall promptly reimburse the Indemnified Party for all Damages, including without limitation any amounts paid to litigate or otherwise contest or settle such claim and all amounts paid in satisfaction of a judgment against the Indemnified Party in contesting such claim and in providing its right to indemnification hereunder, all in accordance with the provisions hereof, any of the Indemnified Parties may undertake such defense and this Section 6.6.
(c) No Third Party Claim will be settled by the Indemnifying Party shall be responsible for reimbursing or the Indemnified Parties for their reasonable legal fees and expenses in connection therewith as and when such fees and expenses are incurred by them. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the sole right to settle the claim, subject to obtaining without the consent of the Indemnified Partyother, which consent will not be unreasonably withheld or delayed; provided, however, that if such claim asserts that the Indemnifying Party is jointly and severally liable and the Indemnified Party shall fail be fully released from all liability relating to consent to the settlement of such a claim by the Indemnifying Party, which settlement (i) the claimant has indicated it will accept, (ii) does not relate to Xx. Xxxxxxxx or Xxxx Xxxxxxxx and (iii) includes an unconditional release of the Indemnified Third Party by the claimant and imposes no restrictions on the future activities and does not materially and adversely affect the Tax Liability for future periods of the Indemnified Party and its AffiliatesClaim in connection with such settlement, the Indemnifying Party may enter into such settlement without shall not be required to obtain the consent of the Indemnified Party’s consent. If The party in charge of the Indemnified Party is defending defense or any settlement negotiations shall keep the claim other party apprised at all times as set forth above, the Indemnified Party shall have the sole right to settle or compromise any claim, subject to obtaining consent to the status of the defense or any settlement of such claim by the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned)negotiations with respect thereto.
Appears in 1 contract
Third Party Claims Procedure. The obligations of the Parties provided for in Section 10.2 and 10.3, as applicable, with respect of Claims made or asserted by a third party (“Third-Party Claims”) shall be performed in accordance with the following procedures:
(a) Promptly after the receipt by any Buyer the Indemnified Party or Seller Indemnified Party (each, an “Indemnified Party”) of notice of, of a Third-Party Claim or threat of, the commencement of any action or proceeding Legal Proceeding involving such a Claim that could reasonably be expected to give rise to any Losses against such which the Indemnified Party by a third partyexpects to seek indemnification under this Article X, such the Indemnified Party shall, if a claim with respect thereto is or may be made against any indemnifying party (shall deliver to the “Indemnifying Party”) pursuant to this ARTICLE VII, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy written notice which shall state the nature of such claim and/or process (or threat thereof) the Third-Party Claim and all legal pleadings a brief description of the alleged basis therefor and provide a reasonably detailed statement of the facts required in connection therewith. The failure to give such notice shall not relieve any order for the Indemnifying Party of any of its indemnification obligations contained in this ARTICLE VII, except where, to evaluate the Third-Party Claim and solely decide whether to assume the extent that, such failure actually prejudices the rights of such Indemnifying Party. If such Indemnifying Party acknowledges responsibility for indemnification pursuant to this ARTICLE VII with respect to such claim and/or process within twenty (20) days of such notice, such Indemnifying Party shall have the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnified Party, any such matter involving the asserted Liability of the Indemnified Partydefense thereof; provided, however, that the failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party, except to the extent that the Indemnifying Party is materially prejudiced as a result of such failure, including as a result of the incurrence of additional Losses by the Indemnifying Party or the forfeiture of substantive rights or defenses that would otherwise be available in the defense of such Third-Party Claim.
(b) If a Legal Proceeding is commenced by a third party against an Indemnified Party and it gives notice to the Indemnifying Party in accordance with paragraph (a) above, the Indemnifying Party shall be entitled to assume the defense of such Legal Proceeding at the expense of the Indemnifying Party with counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such Legal Proceeding and participate in the defense or thereof, but the fees and expenses of such asserted Liability counsel shall be at the Indemnified Party’s own expense. In any event, expense of the Indemnified Party and its unless (i) the employment of such counsel and such Indemnifying Party and its counsel shall cooperate in at the defense against, or compromise of, any such asserted Liability. In expense of the event that such Indemnifying Party shall decline have been specifically authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party shall have failed to participate in or assume the defense of such actionLegal Proceeding with counsel reasonably satisfactory to the Indemnified Party within a reasonable period after receipt by it of the notice referred to in paragraph (a) above (unless such failure is due to the Indemnified Party failing or refusing to acknowledge that the Indemnifying Party is entitled to assume the defense thereof) or (iii) the named parties to any such Legal Proceeding (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party shall have been advised by such counsel that there is one or shall not respond within twenty (20) days of notice more legal defenses available to it that are in conflict in any material respect with those available to the Indemnifying Party such that an assertion of such claim, in accordance with legal defenses by the provisions hereof, any Indemnifying Party on behalf of the Indemnified Parties may undertake such defense and Party could reasonably be expected to result in material prejudice to the Indemnified Party. If clause (ii) or (iii) above are applicable in the case of any Legal Proceeding, then (notwithstanding the first sentence of this paragraph (b)) the Indemnifying Party shall not be responsible for reimbursing entitled to assume the defense of the such Legal Proceeding, and the Indemnified Parties for their reasonable legal fees and expenses in connection therewith as and when such fees and expenses are incurred by them. If Party shall conduct the defense thereof at the expense of the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the sole right to settle the claim, subject to obtaining the consent of the Indemnified Party; provided, however, that if that, in any such case, the Indemnifying Party shall not, in connection with any one action or separate but substantially similar or related actions arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for the Indemnified Party shall fail to consent to the settlement of such a claim by the Indemnifying Party, which settlement . Except as provided in clause (i) the claimant has indicated it will accept), (ii) does not relate to Xx. Xxxxxxxx or Xxxx Xxxxxxxx and (iii) above, after notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of any Legal Proceeding, the Indemnifying Party shall not be liable to the Indemnified Party for any attorney’s fees or other costs or expenses subsequently incurred by the Indemnified Party in connection with the defense thereof.
(c) The Indemnifying Party shall not, without the prior written consent of each Indemnified Party (which consent shall not be unreasonably withheld or delayed), settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Legal Proceeding in respect of which indemnification is being sought by such Indemnified Party hereunder (whether or not the Indemnified Party is an actual or potential party to such Legal Proceeding) unless such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability arising out of such Legal Proceeding. An Indemnified Party shall not compromise or consent to the entry of any judgment with respect to any pending or threatened Legal Proceeding in respect of which indemnification is being sought by the claimant and imposes no restrictions on the future activities and does not materially and adversely affect the Tax Liability for future periods of the Indemnified Party and its Affiliateshereunder, without the prior written consent of the Indemnifying Party may enter into such settlement without the Indemnified Party’s consent. If the Indemnified Party is defending the claim as set forth above, the Indemnified Party shall have the sole right to settle or compromise any claim, subject to obtaining consent to the settlement of such claim by the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned).
Appears in 1 contract
Third Party Claims Procedure. Promptly Each of the parties hereto, within five (5) days after the receipt by service of process upon either of them in a lawsuit, including any Buyer Indemnified Party notices of any court action or Seller Indemnified Party administrative action (eachor any other type of action or proceeding), an “Indemnified Party”) or promptly after either of notice them, to its respective knowledge, shall become subject to, or possess actual knowledge of, any damage, liability, loss, cost, expense, or threat ofclaim to which any of the indemnification provisions set forth in this Agreement relate, shall give written notice to the other party setting forth the facts relating to the claim, damage, or loss, if available, and the estimated amount of the same. “Promptly” for purposes of this Section 11.3 shall mean giving notice within ten (10) days, provided that the failure promptly notify the indemnifying party shall not operate to waive, reduce or extinguish the indemnified party’s rights hereunder unless such failure materially prejudices the indemnifying party. Upon receipt of such notice relating to a lawsuit, the commencement indemnifying party shall be entitled to (i) participate at its own expense in the defense or investigation of any action claim or proceeding against such Indemnified Party by a third partylawsuit or (ii) assume the defense thereof, such Indemnified Party shall, if a claim with respect thereto is or may be made against any in which event the indemnifying party (shall not be liable to the “Indemnifying Party”) pursuant to this ARTICLE VII, give indemnified party for legal or attorney fees thereafter incurred by such Indemnifying Party written notice of the commencement indemnified party in defense of such action or proceeding and give such Indemnifying Party a copy claim; provided, that if the indemnified party may have any unindemnified liability out of such claim and/or process (or threat thereof) and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this ARTICLE VII, except where, and solely to the extent thatclaim, such failure actually prejudices the rights of such Indemnifying Party. If such Indemnifying Party acknowledges responsibility for indemnification pursuant to this ARTICLE VII with respect to such claim and/or process within twenty (20) days of such notice, such Indemnifying Party party shall have the right to defendapprove the counsel selected by the indemnifying party, at its own expense which approval shall not be withheld unreasonably. If the indemnifying party assumes the defense of any claim or lawsuit, all costs of defense of such claim or lawsuit shall thereafter be borne by such party and such party shall have the authority to compromise and settle such claim or lawsuit, or to appeal any adverse judgment or ruling with the cost of such appeal to be paid by its own counsel reasonably acceptable to the Indemnified Party, any such matter involving the asserted Liability of the Indemnified Partyparty; provided, however, that if the Indemnified Party indemnified party may have any unindemnified liability arising out of such claim or lawsuit the indemnifying party shall have the right authority to compromise and settle each such claim or lawsuit only with the written consent of the indemnified party, which shall not be withheld unreasonably. The indemnified party may continue to participate in any litigation at its expense after the defense or such asserted Liability at the Indemnified Party’s own expense. In any event, the Indemnified Party and its counsel and such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted Liability. In the event that such Indemnifying Party shall decline to participate in or assume indemnifying party assumes the defense of such action. In the event the indemnifying party does not elect to assume the defense of a claim or lawsuit, the indemnified party shall have authority to compromise and settle such claim or shall not respond within twenty (20) days of notice of such claim, in accordance lawsuit only with the provisions hereof, any of the Indemnified Parties may undertake such defense and the Indemnifying Party shall be responsible for reimbursing the Indemnified Parties for their reasonable legal fees and expenses in connection therewith as and when such fees and expenses are incurred by them. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the sole right to settle the claim, subject to obtaining the written consent of the Indemnified Party; providedindemnifying party, however, that if the Indemnified Party shall fail to consent to the settlement of such a claim by the Indemnifying Party, which settlement (i) the claimant has indicated it will accept, (ii) does not relate to Xx. Xxxxxxxx or Xxxx Xxxxxxxx and (iii) includes an unconditional release of the Indemnified Party by the claimant and imposes no restrictions on the future activities and does not materially and adversely affect the Tax Liability for future periods of the Indemnified Party and its Affiliates, the Indemnifying Party may enter into such settlement without the Indemnified Party’s consent. If the Indemnified Party is defending the claim as set forth above, the Indemnified Party shall have the sole right to settle or compromise any claim, subject to obtaining consent to the settlement of such claim by the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned)to appeal any adverse judgment or ruling, with all costs, fees, and expenses indemnifiable under this Agreement to be paid by the indemnifying party. Upon the indemnified party’s furnishing to the indemnifying party an estimate of any loss, damage, liability, or expense to which the indemnification provisions of this Agreement relate, the indemnifying party shall pay to the indemnified party the amount of such estimate within ten (10) days of receipt of such estimate, unless the indemnifying party in good faith disputes its liability with respect to any such claim.
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Third Party Claims Procedure. (a) Promptly (and in any event within five days after the receipt by service of any Buyer Indemnified Party summons or Seller Indemnified Party other document) after becoming aware of any third party claim for which one or more of the Parties (each, an the “Indemnified Party”) of notice of, may seek indemnification against one or threat of, the commencement of any action or proceeding against such Indemnified Party by a third party, such Indemnified Party shall, if a claim with respect thereto is or may be made against any indemnifying party more other Parties (the “Indemnifying Party”) pursuant to this ARTICLE VIIAgreement, the Indemnified Party shall give such Indemnifying Party written notice of thereof to the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process (or threat thereof) and all legal pleadings in connection therewithParty. The failure Failure to give such provide notice shall not relieve any the Indemnifying Party of any of its indemnification obligations contained in under Section 7.1 or this ARTICLE VIISection 7.2, except where, and solely to the extent that, such failure actually prejudices that the rights of such Indemnifying Party. If such Indemnifying Party acknowledges responsibility for indemnification pursuant to this ARTICLE VII with respect to such claim and/or process within twenty (20) days of such notice, such demonstrates actual damage caused by that failure. The Indemnifying Party shall have the right to defend, at its own expense and by its own assume the defense of any claim with counsel reasonably acceptable to the Indemnified Party, any such matter involving the asserted Liability Party upon delivery of notice to that effect to the Indemnified Party; provided. If the Indemnifying Party, howeverafter written notice from the Indemnified Party, that fails to take timely action to defend the action resulting from the claim or otherwise respond to the claim, the Indemnified Party shall have the right to participate in defend the defense or such asserted Liability action resulting from the claim by counsel of its own choosing, but at the Indemnified cost and expense of the Indemnifying Party’s own expense. In any event, the The Indemnified Party shall have the right to settle or compromise any claim against it, and its counsel and such recover from the Indemnifying Party and its counsel shall cooperate any amount paid in the defense against, settlement or compromise ofthereof, any such asserted Liability. In if it has given written notice of the event that such proposed settlement or compromise to the Indemnifying Party shall decline to participate in or assume the defense of such action, or shall not respond within twenty (20) days of notice of such claim, in accordance with the provisions hereof, any of the Indemnified Parties may undertake such defense and the Indemnifying Party shall be responsible for reimbursing the Indemnified Parties for their reasonable legal fees and expenses in connection therewith as and when such fees and expenses are incurred by them. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the sole right has failed to settle take timely action to defend the claim, subject to obtaining the consent of the Indemnified Party; provided, however, that if the Indemnified Party shall fail to consent to the settlement of such a claim by the Indemnifying Party, which settlement (i) the claimant has indicated it will accept, (ii) does not relate to Xx. Xxxxxxxx or Xxxx Xxxxxxxx and (iii) includes an unconditional release of the Indemnified Party by the claimant and imposes no restrictions on the future activities and does not materially and adversely affect the Tax Liability for future periods of the Indemnified Party and its Affiliates, the Indemnifying Party may enter into such settlement without the Indemnified Party’s consent. If the Indemnified Party is defending the claim as set forth aboveotherwise, the Indemnified Party shall have the sole no right to settle or compromise any claim. The Indemnifying Party shall have the right to settle or compromise any claim against the Indemnified Party without the consent of the Indemnified Party, subject to obtaining consent to provided that the terms of the settlement or compromise provide for the unconditional release of such claim the Indemnified Party and require only the payment of monetary damages by the Indemnifying Party.
(b) Upon its receipt of any amount paid by the Indemnifying Party pursuant to this Article 7, the Indemnified Party shall deliver to the Indemnifying Party such documents as it may reasonably request assigning to the Indemnifying Party any and all rights, to the extent indemnified, that the Indemnified Party may have against third parties with respect to the claim for which indemnification is being received.
(which consent c) In the event that the claim is asserted by one of the Parties to this Agreement either based on a direct claim by a Party or a third party claim, the procedure set forth in this Section 7.2 shall not be unreasonably withheld, delayed or conditioned)control.
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Third Party Claims Procedure. (a) Promptly after the receipt by any Buyer an Indemnified Party or Seller Indemnified Party (each, an “Indemnified Party”) of notice of, or threat of, the commencement of any action or proceeding against a Third Party Claim with respect to which such Indemnified Party by a third partymay be entitled to receive payment from the other Party for any Purchaser Losses or any Shareholder Losses (as the case -41- may be), such Indemnified Party shall, if a claim with respect thereto is or may be made against any indemnifying party (will notify the “Indemnifying Party”) pursuant to this ARTICLE VII, give such Indemnifying Party written promptly following the Indemnified Party's receipt of such complaint or of notice of the commencement of such audit, investigation, action or proceeding and give such proceeding; provided, however, that the failure to so notify the Indemnifying Party a copy of will relieve the Indemnifying Party from liability under this Agreement with respect to such claim and/or process (or threat thereof) and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this ARTICLE VII, except where, and solely only to the extent that, such failure actually prejudices to notify the rights of such Indemnifying Party. If such Indemnifying Party acknowledges responsibility for indemnification pursuant results in the prejudice to this ARTICLE VII the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim and/or process claim; provided, further, that the Indemnifying Party may assume such defense under a reservation of rights that the Indemnified Party may not be entitled to indemnification hereunder. The Indemnifying Party will have the right, upon written notice delivered to the Indemnified Party within twenty ten (2010) days thereafter assuming full responsibility for any Purchaser Losses or Shareholder Losses (as the case may be) resulting from such Third Party Claim, to assume the defense of such noticeaudit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. Notwithstanding the foregoing, such Indemnifying Indemnified Party shall have the right to defend, employ separate counsel at the Indemnifying Party's expense and to control its own expense defense of such action or proceeding if, in the reasonable opinion of counsel to such Indemnified Party, (i) the use of counsel chosen by the Indemnifying Party to represent the Indemnified Party would present such counsel with a conflict of interest, (ii) the named parties to any proceeding (including any impleaded parties) include both the Indemnifying Party and an Indemnified Party and (a) representation of both parties by its own the same counsel, or conduct by the Indemnifying Party of the defense of the Indemnified Party, would be inappropriate due to actual or potential differing interests between the Indemnifying Party and such Indemnified Party or (b) there may be defenses available to the Indemnified Party which are different from, or in addition to, the defenses available to the Indemnifying Party, or (iii) the Indemnifying Party fails to assume the defense of the proceeding or to employ counsel reasonably acceptable satisfactory to the Indemnified Party, any such matter involving the asserted Liability of the Indemnified Partyin each case in a timely manner; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one (1) counsel for all Indemnified Parties in any single jurisdiction in one Third Party Claim. In any Third Party Claim for which the Indemnifying Party has assumed the defense, the Indemnified Party shall will have the right to participate in such matter and to retain its own counsel at such Party's own expense. The Indemnifying Party will at all times use reasonable efforts to keep the Indemnified Party reasonably apprised of the status of the defense or of any matter the defense of which the Indemnifying Party has assumed. The Indemnifying Party and the Indemnified Party shall cooperate in good faith with respect to the defense of any such asserted Liability at matter. The Indemnified Party will (and will cause the respective officers, directors, employees, auditors and agents of the Indemnified Party’s own expense. In any event, ) provide the Indemnified Indemnifying Party and its counsel and other advisors full access, during reasonable business hours and under reasonable circumstances, to any and all of its premises, employees (including executive officers), contracts, financial statements, books, records and other information pertaining to the defense of any such matter, subject to an appropriate confidentiality agreement.
(b) No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, unless (i) the Indemnifying Party fails to assume and maintain the defense of such claim pursuant to Section 8.6(a) or (ii) such settlement, compromise or consent includes an unconditional release of the Indemnifying Party and its counsel shall cooperate in the defense againstofficers, or compromise ofdirectors, any such asserted Liability. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, or shall not respond within twenty (20) days of notice employees and Affiliates from all liability arising out of such claim, in accordance with the provisions hereof, any of the Indemnified Parties may undertake such defense and the . An Indemnifying Party shall be responsible for reimbursing may not, without the Indemnified Parties for their reasonable legal fees and expenses in connection therewith as and when such fees and expenses are incurred by them. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the sole right to settle the claim, subject to obtaining the prior written consent of the Indemnified Party; provided, however, that if the Indemnified Party shall fail to settle or compromise any claim or consent to the settlement entry of any judgment with respect to which indemnification is being sought hereunder unless (x) such a claim by the Indemnifying Partysettlement, which settlement (i) the claimant has indicated it will accept, (ii) does not relate to Xx. Xxxxxxxx compromise or Xxxx Xxxxxxxx and (iii) consent includes an unconditional release of the Indemnified Party by the claimant and imposes no restrictions on the future activities its officers, directors, employees and Affiliates from all liability arising out of such claim, (y) does not materially and adversely affect the Tax Liability for future periods contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and its (z) does not contain any equitable order, judgment or term which in any manner affects, restrains or interferes with the business of the Indemnified Party or any of the Indemnified Party's Affiliates.
(c) If an Indemnified Party claims a right to payment pursuant to this Agreement, such Indemnified Party will send written notice of such claim to the appropriate Indemnifying Party. Such notice will specify the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party will establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, the Indemnifying Party may enter into such settlement without the Indemnified Party’s consent. If will pay to the Indemnified Party is defending the immediately available funds in an amount equal to such claim as set forth above, the Indemnified Party shall have the sole right to settle or compromise any claim, subject to obtaining consent to the settlement of such claim by the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned)determined hereunder.
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