Third Party Claims. If a claim by a third party is made against any Indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim.
Appears in 4 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Rainmaker Systems Inc), Asset Purchase Agreement (Rainmaker Systems Inc)
Third Party Claims. If a claim by a third party is made against With respect to any Indemnified PartyThird Party Claim, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such notice to assume Third Party Claim and, in such event, the conduct and control, through counsel reasonably acceptable to Indemnifying Party shall reimburse the Indemnified Party at for all the expense Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying PartyParty elects to assume such control, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party Party, shall permit have the Indemnified Party right to participate in such the negotiation, settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses defence of such counsel shall be borne by such Indemnified Third Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges Claim at its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense own expense and shall pay have the fees right to disagree on reasonable grounds with the selection and expenses retention of counsel, in which case counsel retained by the Indemnified Party if (i) the claim for indemnification relates reasonably satisfactory to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing retained by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to . If the Indemnifying Party, or available having elected to the Indemnifying Party the assertion of which would be adverse assume such control, thereafter fails to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting defend any such claim in good faithThird Party Claim within a reasonable time, the Indemnified Party shall not pay or settle be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any such claim. Notwithstanding the foregoingThird Party Claim, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the exclusive right to contest, settle or compromise pay the claim but shall amount claimed. Whether or not thereby waive the Indemnifying Party assumes control of the negotiation, settlement or defence of any right to indemnity therefor pursuant to this Agreement. The Third Party Claim, the Indemnifying Party shall not, except with not settle any Third Party Claim without the written consent of the Indemnified Party, enter into which consent shall not be unreasonably withheld or delayed; provided, however, that if any settlement that such consent is not entirely indemnifiable by obtained for any reason, liability on the part of other Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense be limited to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimproposed settlement amount.
Appears in 4 contracts
Samples: Qualifying Transaction Agreement (Mogul Energy International, Inc.), Property Option Agreement, Qualifying Transaction Agreement (Mogul Energy International, Inc.)
Third Party Claims. If a claim The obligation of an indemnifying party to ------------------ indemnify another party to this Agreement under the provisions of this Article with respect to claims resulting from the assertion of liability by Persons not parties to this Agreement (including governmental claims for penalties, fines and assessments) shall be subject to the following terms and conditions:
(a) The indemnified party shall give prompt written notice to the indemnifying party of any assertion of liability by a third party is made against any Indemnified Partywhich might give rise to a claim for indemnification, which notice shall state the nature and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15basis of the assertion and the amount thereof, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent known, provided, however, that no delay on the Indemnifying Party part of the indemnified party in giving notice shall relieve the indemnifying party of any obligation to indemnify unless (and then solely to the extent that) the indemnifying party is actually prejudiced by such delay.
(b) If any action, suit or proceeding (a "Legal Action") is brought against an indemnified party with respect to which the indemnifying party may have an obligation to indemnify, the Legal Action shall be defended by the indemnifying party and materially prejudiced thereby. The Indemnifying Party such defense shall include all proceedings and appeals which counsel for the indemnified party shall reasonably deem appropriate.
(c) Notwithstanding the provisions of the previous subsection of this Article, until the indemnifying party shall have thirty assumed the defense of any such Legal Action, the defense shall be handled by the indemnified party. Furthermore, (30i) days after receipt of such notice if the indemnified party shall have reasonably concluded that there are likely to assume be defenses available to the conduct and control, through counsel indemnified party that are different from or in addition to those available to the indemnifying party; (ii) if the indemnifying party fails to provide the indemnified party with evidence reasonably acceptable to the Indemnified Party at indemnified party that the expense indemnifying party has sufficient financial resources to defend and fulfill its indemnification obligation with respect to the Legal Action; (iii if the Legal Action involves other than money damages and seeks injunctive or other equitable relief; or (iv) if a judgment against the indemnified party will, in the good faith opinion of the Indemnifying Partyindemnified party, establish a custom or precedent which will be materially adverse to the best interests of its continuing business, the settlement or defense thereof and the Indemnified Party indemnifying party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly not be entitled to assume the defense of such action only to the extent Legal Action and the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against defense shall be handled by the full amount indemnified party. If the defense of any Loss resulting therefrom; providedthe Legal Action is handled by the indemnified party under the provisions of this subsection, further, that the Indemnifying Party shall not be entitled to assume control of such defense and indemnifying party shall pay the fees all legal and other expenses of counsel retained reasonably incurred by the Indemnified Party if indemnified party in conducting such defense.
(d) In any Legal Action initiated by a third party and defended by the indemnifying party (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party indemnified party shall have the right to employ separate be represented by advisory counsel in any and accountants, at its own expense, (ii) the indemnifying party shall keep the indemnified party fully informed as to the status of such action or claim and to participate in the defense Legal Action at all stages thereof, but whether or not the fees indemnified party is represented by its own counsel, (iii) the indemnifying party shall make available to the indemnified party, and expenses its attorneys, accountants and other representatives, all books and records of the indemnifying party relating to such counsel Legal Action and (iv) the parties shall render to each other such assistance as may be reasonably required in order to ensure the proper and adequate defense of the Legal Action.
(e) In any Legal Action initiated by a third party and defended by the indemnifying party, the indemnifying party shall not make any settlement of any claim without the written consent of the indemnified party, which consent shall not be at unreasonably withheld. Without limiting the expense generality of the Indemnifying Party unless (x) foregoing, it shall not be deemed unreasonable to withhold consent to a settlement involving injunctive or other equitable relief against the Indemnifying Party shall have failedindemnified party or its assets, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Partyemployees or business, or (z) relief which the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one indemnified party reasonably believes could establish a custom or more legal defenses available to the Indemnified Party precedent which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would will be adverse to the best interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimcontinuing business.
Appears in 4 contracts
Samples: Membership Interest Contribution Agreement (Cornerstone Realty Income Trust Inc), Membership Interest Contribution Agreement (Cornerstone Realty Income Trust Inc), Membership Interest Contribution Agreement (Cornerstone Realty Income Trust Inc)
Third Party Claims. If a claim The obligation of an indemnifying party to ------------------ indemnify another party to this Agreement under the provisions of this Article with respect to claims resulting from the assertion of liability by Persons not parties to this Agreement (including governmental claims for penalties, fines and assessments) shall be subject to the following terms and conditions:
(a) The indemnified party shall give prompt written notice to the indemnifying party of any assertion of liability by a third party is made against any Indemnified Partywhich might give rise to a claim for indemnification, which notice shall state the nature and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15basis of the assertion and the amount thereof, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent known, provided, however, that no delay on the Indemnifying Party part of the indemnified party in giving notice shall relieve the indemnifying party of any obligation to indemnify unless (and then solely to the extent that) the indemnifying party is actually prejudiced by such delay.
(b) If any action, suit or proceeding (a "Legal Action") is brought against an indemnified party with respect to which the indemnifying party may have an obligation to indemnify, the Legal Action shall be defended by the indemnifying party and materially prejudiced thereby. The Indemnifying Party such defense shall include all proceedings and appeals which counsel for the indemnified party shall reasonably deem appropriate.
(c) Notwithstanding the provisions of the previous subsection of this Article, until the indemnifying party shall have thirty assumed the defense of any such Legal Action, the defense shall be handled by the indemnified party. Furthermore, (30i) days after receipt of such notice if the indemnified party shall have reasonably concluded that there are likely to assume be defenses available to the conduct and control, through counsel indemnified party that are different from or in addition to those available to the indemnifying party; (ii) if the indemnifying party fails to provide the indemnified party with evidence reasonably acceptable to the Indemnified Party at indemnified party that the expense indemnifying party has sufficient financial resources to defend and fulfill its indemnification obligation with respect to the Legal Action; (iii) if the Legal Action involves other than money damages and seeks injunctive or other equitable relief; or (iv) if a judgment against the indemnified party will, in the good faith opinion of the Indemnifying Partyindemnified party, establish a custom or precedent which will be materially adverse to the best interests of its continuing business, the settlement or defense thereof and the Indemnified Party indemnifying party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly not be entitled to assume the defense of such action only to the extent Legal Action and the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against defense shall be handled by the full amount indemnified party. If the defense of any Loss resulting therefrom; providedthe Legal Action is handled by the indemnified party under the provisions of this subsection, further, that the Indemnifying Party shall not be entitled to assume control of such defense and indemnifying party shall pay the fees all legal and other expenses of counsel retained reasonably incurred by the Indemnified Party if indemnified party in conducting such defense.
(d) In any Legal Action initiated by a third party and defended by the indemnifying party (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party indemnified party shall have the right to employ separate be represented by advisory counsel in any and accountants, at its own expense, (ii) the indemnifying party shall keep the indemnified party fully informed as to the status of such action or claim and to participate in the defense Legal Action at all stages thereof, but whether or not the fees indemnified party is represented by its own counsel, (iii) the indemnifying party shall make available to the indemnified party, and expenses its attorneys, accountants and other representatives, all books and records of the indemnifying party relating to such counsel Legal Action and (iv) the parties shall render to each other such assistance as may be reasonably required in order to ensure the proper and adequate defense of the Legal Action.
(e) In any Legal Action initiated by a third party and defended by the indemnifying party, the indemnifying party shall not make any settlement of any claim without the written consent of the indemnified party, which consent shall not be at unreasonably withheld. Without limiting the expense generality of the Indemnifying Party unless (x) foregoing, it shall not be deemed unreasonable to withhold consent to a settlement involving injunctive or other equitable relief against the Indemnifying Party shall have failedindemnified party or its assets, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Partyemployees or business, or (z) relief which the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one indemnified party reasonably believes could establish a custom or more legal defenses available to the Indemnified Party precedent which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would will be adverse to the best interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimcontinuing business.
Appears in 4 contracts
Samples: Membership Interest Contribution Agreement (Cornerstone Realty Income Trust Inc), Membership Interest Contribution Agreement (Cornerstone Realty Income Trust Inc), Membership Interest Contribution Agreement (Cornerstone Realty Income Trust Inc)
Third Party Claims. If a claim by a third party is made against With respect to any Indemnified PartyThird Party Claim, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt the right, at its expense and with counsel of such notice to assume the conduct and control, through counsel reasonably acceptable its choice satisfactory to the Indemnified Party at Party, acting reasonably, to defend and, upon written request from the expense of Indemnified Party, shall defend the Claim (including the negotiation and settlement thereof). If the Indemnifying PartyParty elects or is required to assume such defense, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) have the Indemnifying Party shall permit the Indemnified Party right to participate in such the negotiation, settlement or defense through of such Third Party Claim and to retain separate counsel chosen by such Indemnified Partyto act on its behalf, provided that the fees and expenses disbursements of such separate counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel shall be borne by such or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and (ii) representation of both the Indemnifying Party shall promptly and the Indemnified Party by the same counsel would be entitled to assume the defense of such action only inappropriate due to the extent actual or potential conflicting interests between them (such as the availability of different defenses). If the Indemnifying Party, having assumed such control, thereafter fails to defend the Third Party acknowledges its indemnity obligation and assumes and holds such Claim within a reasonable time, the Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and the Indemnifying Party shall pay be bound by the fees and expenses of counsel retained results obtained by the Indemnified Party if (i) the claim for indemnification relates with respect to or arises in connection with such Third Party Claim. If any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) Third Party Claim is of a nature such that the Indemnified Party has been advised in writing is required by counsel that applicable law to make a reasonable likelihood exists payment to any Third Party with respect to the Third Party Claim before the completion of a conflict of interest between settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party and the Indemnified Party; or (iv) upon petition shall, forthwith after demand by the Indemnified Party, reimburse the appropriate court rules Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which such payment was made, as finally determined, is less than the amount that was paid by the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any the Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereofParty, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party shall, forthwith after receipt of the existence difference from the Third Party, pay the amount of such claim as provided in the preceding sentencedifference, to assume the defense of such claimwithout interest, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim.
Appears in 4 contracts
Samples: License and Distribution Agreement (Cypress Bioscience Inc), License and Distribution Agreement (Cypress Bioscience Inc), Securities Purchase Agreement (Cypress Bioscience Inc)
Third Party Claims. If In order for an Indemnified Party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim made by a third party is made against any Person (other than by an Indemnified Party, and if such which claims are addressed in Section 10.3(a)) against the Indemnified Party intends to seek indemnity with respect thereto under Section 15(a “Third Party Claim”), such Indemnified Party shall promptly must notify the Indemnifying Party in writing of the Third Party Claim (which notice will specify in reasonable detail the events giving rise to such claimsThird Party Claim) promptly after receipt by such Indemnified Party of notice of the Third Party Claim; provided, however, that the failure to so notify shall give such notification will not relieve affect the Indemnifying Party of its obligations hereunderindemnification provided under this Agreement, except to the extent the Indemnifying Party will have been actually and materially prejudiced as a result of such failure or the indemnification obligations of the Indemnifying Party are materially increased as a result of such failure. Thereafter, the Indemnified Party will deliver to the Indemnifying Party, promptly following the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. If a Third Party Claim is made, the Indemnifying Party will be entitled to participate in the defense thereof. The Indemnifying Party may also assume the defense of any Third Party Claim (subject to the limitations set forth below) with counsel selected by the Indemnifying Party reasonably acceptable to and upon written notice to the Indemnified Party. If the Indemnifying Party assumes such defense, the Indemnified Party will have the right to participate in such defense and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood and agreed that the Indemnifying Party is actually and materially prejudiced therebywill control such defense. The Notwithstanding the foregoing, the Indemnifying Party shall have thirty (30) days after receipt will be liable for the fees and expenses of such notice to assume the conduct one outside counsel and control, through any local counsel reasonably acceptable necessary to defend such Third Party Claim (and not any fees and expenses allocated to any internal counsel) employed by the Indemnified Party at the expense of for any period during which the Indemnifying Party, Party has not assumed the defense of the settlement or defense thereof and such Third Party Claim (other than during any period in which the Indemnified Party shall cooperate with it in connection therewith; providedwill have failed to give notice of the Third Party Claim as provided above), that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that and the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) will constitute Losses for purposes of this Agreement. If the Indemnifying Party shall promptly be entitled chooses to assume defend or prosecute a Third Party Claim, all the Indemnified Parties will reasonably cooperate in the defense or prosecution of such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party will not admit any liability with respect to, settle, compromise or discharge, such action only to the extent Third Party Claim without the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against Party’s prior written consent, which consent will not be unreasonably withheld. Notwithstanding the full amount of any Loss resulting therefrom; providedforegoing, further, that the Indemnifying Party shall not be entitled have the right to assume control of such defense and shall pay if the fees and expenses of counsel retained by Third Party Claim which the Indemnified Indemnifying Party if seeks to assume control (i) the claim for indemnification relates to or arises in connection with any criminal proceedingseeks non-monetary relief, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; involves criminal liability, (iii) in the Indemnified Party has been advised in writing by counsel case that a reasonable likelihood exists of a conflict of interest between Seller is the Indemnifying Party and Party, seeks Losses that will not be fully satisfied by the Indemnified Party; Escrow Amount (or so much thereof as is then remaining on deposit in the Escrow Amount) or (iv) upon petition by involves a claim that, in the reasonable and good faith judgment of the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlementdefend. If the Indemnifying Party does not notify assumes the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice defense of a claim Third Party Claim pursuant to the terms of indemnity hereunder that it elects to undertake the defense thereofthis Agreement, the Indemnified Party shall have the right will agree to contestany settlement, settle compromise or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying discharge of a Third Party shall not, except with the consent of the Indemnified Party, enter into any settlement Claim that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement may reasonably recommend and does not include as an unconditional term thereof that by its terms (A) obligates the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party to pay the full amount of Losses in connection with such Third Party Claim and (B) releases the Indemnified Party shall cooperate with each other in all reasonable respects and its Affiliates completely in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Third Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimClaim.
Appears in 3 contracts
Samples: Asset Purchase Agreement (William Lyon Homes), Asset Purchase Agreement (William Lyon Homes), Asset Purchase Agreement (William Lyon Homes)
Third Party Claims. If a claim by a The obligations of an indemnifying party under this Section 11.2(d) with respect to Damages arising from claims of any third party is made against that are subject to indemnification as provided for in Section 11.2(a) or Section 11.2(b) (a “Third Party Claim”) shall be governed by and be contingent upon the following additional terms and conditions:
(i) At its option, the indemnifying party may assume the defense of any Indemnified Party, and if such Third Party Claim by giving written Notice to the Indemnified Party intends within ten (10) days after the indemnifying party’s receipt of an Indemnification Claim Notice. The assumption of the defense of a Third Party Claim by the indemnifying party shall be construed as an acknowledgment that the indemnifying party is liable to seek indemnity with indemnify any Indemnitee in respect thereto under Section 15of the Third Party Claim. Upon assuming the defense of a Third Party Claim, such Indemnified the indemnifying party may appoint as lead counsel in the defense of the Third Party shall promptly notify Claim any legal counsel selected by the Indemnifying Party of such claimsindemnifying party; provided, however, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party such counsel is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that in the Indemnifying Party shall not be entitled to assume control event that (i) a conflict of such defense interest arises between the indemnifying party and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) such that such legal counsel cannot represent both the claim for indemnification relates to indemnifying party and the Indemnified Party or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party Indemnitee has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnitee Party that are different from or in addition to that of the indemnifying party, the Indemnitee may retain its own legal counsel at the expense of the indemnifying party and the indemnifying party and its counsel shall cooperate with the Indemnified Party which are and its counsel, as may be reasonably requested. Except as set forth above, should the indemnifying party assume the defense of a Third Party Claim, the indemnifying party shall not available be liable to the Indemnifying PartyIndemnified Party or any other Indemnitee for any legal expenses subsequently incurred by such Indemnified Party or other Indemnitee in connection with the analysis, defense or settlement of the Third Party Claim.
(ii) Without limiting Section 11.2(d)(i), any Indemnitee shall be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment shall be at the Indemnitee’s sole cost and expense, except as described in Section 11.2(d)(i), unless (A) the employment thereof has been specifically authorized by the indemnifying party in writing, or available (B) the indemnifying party has failed to assume the Indemnifying Party the assertion of defense and employ counsel in accordance with Section 11.2(d)(i) (in which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, case the Indemnified Party shall control the defense).
(iii) With respect to any Damages relating solely to the payment of money damages in connection with a Third Party Claim and that will not pay result in the Indemnitee’s or settle the Indemnified Party’s becoming subject to injunctive or other relief for other than money damages, and as to which the indemnifying party shall have acknowledged in writing the obligation to indemnify the Indemnitee hereunder, the indemnifying party shall have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the indemnifying party, in its sole discretion, shall deem appropriate, provided that, as a result of or in connection with any such settlement each Indemnitee or Indemnified Party shall receive a full release with respect to such claim. The indemnifying party shall not be liable for any settlement or other disposition of Damages by an Indemnitee or Indemnified Party that is reached without the written consent of the indemnifying party, which consent shall not be unreasonably withheld. If the indemnifying party chooses to defend or prosecute any Third Party Claim, no Indemnitee or Indemnified Party shall admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the prior written consent of the indemnifying party, which consent shall not be unreasonably withheld.
(iv) Notwithstanding the foregoing, the Indemnified indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall have be liable for the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor reasonable fees and expenses of counsel incurred by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30in defending such Third Party Claim) days after if the receipt Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Indemnified Party’s notice of a claim of indemnity hereunder Third Party Claim can be so separated from that it elects for money damages, the indemnifying party shall be entitled to undertake assume the defense thereofof the portion relating to money damages.
(v) Regardless of whether the indemnifying party chooses to defend or prosecute any Third Party Claim, the Indemnified Party and the indemnifying party shall, and shall have the right to contest, settle cause each other Indemnitee or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent Affiliate of the Indemnified Partyindemnifying party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall applicable, to, cooperate with each other in all reasonable respects in connection with the defense of any claimor prosecution thereof and shall furnish such records, including making available records relating to information and testimony, provide such claim witnesses and furnishingattend such conferences, without expense to the Indemnifying Party and/or its counseldiscovery proceedings, such employees of the Indemnified Party hearings, trials and appeals as may be reasonably necessary for requested in connection therewith. Such cooperation shall include access during normal business hours afforded to the preparation of the defense indemnifying party or Indemnified Party, as applicable, to, and reasonable retention by each such Person of, records and information that are reasonably relevant to such Third Party Claim, and making each such Person and other employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, and the indemnifying party shall reimburse each such claim or Person for testimony as witnesses all its reasonable out-of-pocket expenses in any proceeding relating to such claimconnection therewith.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Vivus Inc), Asset Purchase Agreement (Kv Pharmaceutical Co /De/), Asset Purchase Agreement (Vivus Inc)
Third Party Claims. If a claim any Claim covered by a third party the foregoing indemnities is made asserted against any Indemnified Party, and if such Indemnified Party intends it shall be a condition to seek indemnity with respect thereto the obligations under Section 15, such this section 9 that the Indemnified Party shall promptly notify give the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced therebynotice thereof in accordance with section 9.2. The Indemnifying Party shall have thirty (30) days after receipt be entitled to control negotiations toward resolution of such notice claim without the necessity of litigation, and, if litigation ensues, to assume defend the conduct and control, through same with counsel reasonably acceptable to the Indemnified Party Party, at the expense of the Indemnifying Party's expense, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in such case extend reasonable cooperation in connection therewith; providedwith such negotiation and defense. If the Indemnifying Party fails to assume control of the negotiations prior to litigation or to defend such action within a reasonable time, that (i) the Indemnified Party shall be entitled, but not obligated, to assume control of such negotiations or defense of such action, and the Indemnifying Party shall permit be liable to the Indemnified Party to participate for its expenses reasonably incurred in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) connection therewith which the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent pay. Neither the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by nor the Indemnified Party if (i) the claim for indemnification relates shall settle, compromise, or make any other disposition of any Claims, which would or might result in any liability to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) respectively, under this section 9 without the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to written consent of the Indemnified Party which are not available to or the Indemnifying Party, or available to the Indemnifying Party the assertion of respectively, which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party consent shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimunreasonably withheld.
Appears in 3 contracts
Samples: Debenture Purchase Agreement (Chancery Lane/GSC Investors Lp), Debenture Purchase Agreement (Moore Corporation LTD), Debenture Purchase Agreement (Moore Corporation LTD)
Third Party Claims. If a claim In case any Claim is brought by a third party for which Claim indemnification is made against any Indemnified or may be provided hereunder the indemnified Party shall provide prompt written notice thereof to the other Party. Where obligated to indemnify such Claim, the indemnifying Party shall, upon the demand and at the option of the indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party defense thereof (at the expense of the Indemnifying indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after or at least ten (10) days prior to the receipt time a response is due in such case, whichever occurs first, or, alternatively upon the demand and at the option of the Indemnified indemnified Party’s notice of a claim of indemnity hereunder that it elects , pay to undertake the defense thereofsuch Party all reasonable costs and expenses, the Indemnified including reasonable attorneys' fees, incurred by such Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreementin defending itself. The Indemnifying Party shall notParties shall
(a) upon SSG's request and at SSG's expense, except InterTrust will attempt to [*] the [*] or [*] SSG to continue to [*] and [*] in accordance with the consent terms hereof such portion of [*] on [*] to InterTrust (except that SSG may reasonably approve any terms relating to payment of any fees or royalties); or (b) at InterTrust's sole discretion, InterTrust may [*], [*] or [*] any [*] of the Indemnified Party[*], enter into any settlement as the case may be, so as to make [*] of the [*] while maintaining [*] of [*] or [*] of the [*] that are material to SSG's then-current or demonstrably anticipated use of such technology. If options (a) and (b) are not [*] as to such portion: (1) SSG may terminate the licenses granted hereunder in its sole discretion; and (2) to the extent InterTrust used reasonable commercial efforts to obtain a license or modify the technology as set forth in subsections (a) or (b), and InterTrust is not entirely indemnifiable by reasonably exposed to liability from SSG's or its sublicensee's continued use of such portion of InterTrust Technology, InterTrust may in its discretion terminate the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability licenses granted hereunder with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimportion.
Appears in 3 contracts
Samples: Technology Development and License Agreement (Intertrust Technologies Corp), Technology Development and License Agreement (Intertrust Technologies Corp), Technology Development and License Agreement (Intertrust Technologies Corp)
Third Party Claims. If a claim by a third party is made against any Indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying With respect to any Third Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified PartyClaim, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failedthe right, within a reasonable time after having been notified by at its own expense, to participate in or assume control of the negotiation, settlement or defense of the Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests for all of the Indemnified Party's out-of-pocket expenses as a result of such participation or assumption. So long as If the Indemnifying Party is reasonably contesting any elects to assume such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoingcontrol, the Indemnified Party shall have the right to pay participate in the negotiation, settlement or settle any defense of such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Third Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party Claim at its own expense and shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except disagree on reasonable grounds with the consent selection and retention of legal counsel, in which case legal counsel satisfactory to both the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party.
(ii) If the Indemnifying Party, having elected to assume control as contemplated in Section 9.4(b)(i), thereafter fails to defend such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim.
(iii) In the event that any Third Party Claim is of a nature such that the Indemnified Party is required by Applicable Laws to make a payment to any Third Party with respect to such Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for any such payment. If the amount of any liability under the Third Party Claim in respect of which such a payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay such difference to the Indemnifying Party.
(iv) Except in the circumstances contemplated by Section 9.4(b)(ii), whether or not the Indemnifying Party assumes control of the negotiation, settlement or defense of any Third Party Claim, the Indemnified Party shall not negotiate, settle, compromise or pay any Third Party Claim except with the prior written consent of the Indemnifying Party (which consent shall not be unreasonably delayed or withheld).
(v) The Indemnified Party shall not permit any right of appeal in respect of any Third Party Claim to terminate without giving the Indemnifying Party notice thereof and an opportunity to contest such Third Party Claim.
(vi) The Parties shall cooperate fully with each other in with respect to Third Party Claims, shall keep each other fully advised with respect thereto (including supplying copies of all relevant documentation promptly as it becomes available) and shall each designate a senior officer who will keep himself/herself informed about and be prepared to discuss the Third Party Claim with his or her counterpart and with legal counsel at all reasonable respects in connection with times.
(vii) Notwithstanding anything to the defense of any claimcontrary contained herein, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees shall not settle any Third Party Claim without the consent of the Indemnified Party as may be reasonably necessary for unless the preparation settlement includes a complete release of the defense Indemnified Party with respect to the Third Party Claim and does not include any admission of any such claim guilt or for testimony as witnesses in any proceeding relating to such claimfault on the part of the Indemnified Party.
Appears in 3 contracts
Samples: Asset Purchase Agreement (LNPR Group Inc.), Asset Purchase Agreement (Tribal Rides International Corp.), Asset Purchase Agreement (Xinda International Corp.)
Third Party Claims. If a claim (i) Within ten (10) days after receipt by the Indemnified Party of notice of the commencement of any action by a third party is made against any Indemnified Partyin respect of which, and if such successful, the Indemnified Party intends would be entitled to seek indemnity with respect thereto under Section 15indemnification hereunder (a “Third Party Claim”), such the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing (stating the nature, basis and amount of the claim in reasonable detail), but any failure to so notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except from any liability that it may have to the Indemnified Party other than to the extent that the Indemnifying Party is actually and materially prejudiced thereby. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party within ten (10) days after the Indemnified Party’s receipt thereof, copies of all notice and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim.
(ii) The Indemnifying Party shall have thirty (30) days after receipt of such notice the right to assume control of the conduct and control, through counsel reasonably acceptable to defense of the Indemnified Party at against the expense of Third Party Claim, or if the Indemnifying PartyParty does not assume such defense, to participate in the defense of the settlement or defense thereof and the such Third Party Claim at its own expense. The Indemnified Party shall cooperate with it have the right to participate in such action or proceeding and to retain its own counsel but the Indemnifying Party shall not be liable for any legal expenses of other counsel subsequently incurred by such Indemnified Party in connection therewith; provided, that with the defense thereof unless (i) the Indemnifying Party shall permit the Indemnified Party has agreed in writing to participate in pay such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and expenses, (ii) the Indemnifying Party shall promptly be entitled have failed to assume employ counsel in a timely manner, or (iii) the defense Indemnified Party shall have been advised by legal counsel that having common counsel would present such counsel with a conflict of interest or the defendants in or targets of any such action only to the extent the or proceeding include both an Indemnified Party and an Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against reasonably concludes that there may be legal defenses available to it or other Indemnified Parties that are in conflict with, or could reasonably be expected to conflict with, those available to the full amount of any Loss resulting therefromIndemnifying Party; provided, furtherhowever, that the Indemnifying Party shall not not, in connection with any one such action or proceeding or separate but substantially similar actions or proceedings in the same jurisdiction arising out of the same general allegations, be entitled to assume control of such defense and shall pay liable for the fees and expenses of counsel retained by more than one separate firm of attorneys at any time for all Indemnified Parties, except to the Indemnified Party if (i) the claim for indemnification relates extent that local counsel, in addition to its regular counsel, is required in order to effectively defend against such action or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; .
(iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, conducting the defense of the Third Party Claim:
(i) the Indemnified Party shall not pay or settle any be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the ;
(ii) no Indemnifying Party shall have consented consent to such payment the entry of any judgment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person each claimant or persons asserting such claim plaintiff to all each Indemnified Parties Party of an unconditional a release from all liability with in respect of such claim without the applicable Indemnified Party’s consent; and
(iii) the Indemnifying Party shall not be liable to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects hereunder for any legal expenses subsequently incurred by such Indemnified Party in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to thereof.
(iv) The Indemnified Parties from whom the defense was assumed shall reimburse the Indemnifying Party and/or its counsel, assuming the defense for all legal fees and expenses reasonably incurred in defending against such employees claim if it is subsequently determined that the Third Party Claim is a claim for which indemnification is not required under this Article XVII. The Indemnified Party shall obtain the prior written approval of the Indemnified Indemnifying Party as may before paying, discharging, or admitting liability or entering into any settlement of a claim or ceasing to defend against such claim (with such approval not to be reasonably necessary for the preparation unreasonably withheld or delayed). All of the applicable Indemnified and Indemnifying Parties shall cooperate with the Party assuming the defense in the defense thereof. Such cooperation shall include the retention and the provision, to the Party assuming the defense, of records and information, which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any such claim or for testimony as witnesses in any proceeding relating to such claimmaterial provided hereunder. The Party assuming the defense shall keep the applicable Indemnified and Indemnifying Parties fully informed regarding the progress and status thereof.
Appears in 3 contracts
Samples: Services Agreement (DJSP Enterprises, Inc.), Services Agreement (DJSP Enterprises, Inc.), Services Agreement (DJSP Enterprises, Inc.)
Third Party Claims. If a claim by a third party is made against any an Indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15this Article VIII, such Indemnified Party Party, shall promptly notify Atlas, if an APL Indemnified Party, or APL, if an Atlas Indemnified Party (Atlas or APL, as the case may be, the “Indemnifying Party Party”), of such claims; provided, that the . The failure to so notify provide such notice shall not relieve the Indemnifying Party result in a waiver of its obligations hereunder, any right to indemnification hereunder except to the extent that the Indemnifying Party is actually and materially prejudiced therebyby such failure. The Indemnifying Party shall have thirty (30) 30 days after receipt of such notice to assume the elect to undertake, conduct and control, through counsel reasonably acceptable to the Indemnified Party of its own choosing and at the expense of the Indemnifying Partyits own expense, of the settlement or defense thereof (provided that the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party in respect of such claim), and the Indemnified Party shall cooperate with it in connection therewith; provided. Notwithstanding the foregoing, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) ’s expense if the named parties to any such action proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party Party, and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing by such that it elects to employ separate counsel that there may be one or more legal defenses available to at the Indemnified Party which are not available to expense of the Indemnifying Party, or available to the Indemnifying Party shall not have the assertion right to assume the defense thereof and the reasonable expenses of which would such counsel shall be adverse to at the interests expense of the Indemnified Indemnifying Party). So long as Notwithstanding the foregoing, in no event shall an Indemnifying Party is reasonably contesting any such claim in good faith, be required to pay the expenses of more than one (1) separate counsel. The Indemnified Party shall not pay or settle any such claimclaim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim; provided that, provided that in such event event, it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified PartyParty (which consent shall not be unreasonably withheld, conditioned or delayed), enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include unless (i) such settlement includes as an unconditional term thereof the giving by the person Person or persons Persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and (ii) the only relief imposed against such Indemnified Party shall cooperate with each other in all reasonable respects in connection with is the defense payment of any claim, including making available records relating to such claim and furnishing, without expense to monetary damages which are paid by the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimParty.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Atlas Pipeline Partners Lp), Purchase and Sale Agreement (Atlas Energy, Inc.), Purchase and Sale Agreement (Atlas Pipeline Holdings, L.P.)
Third Party Claims. If a any claim or action by a third party is made in writing against any a Hxxxxx Indemnified Person or a Newco Indemnified Person (each, an “Indemnified Party, ”) for which indemnification is provided under this Agreement and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15such indemnity, then such Indemnified Party shall promptly notify the party from whom indemnification may be sought hereunder (the “Indemnifying Party Party”) in writing of such claimsclaim or action; provided, however, that the any failure by such Indemnified Party to so notify shall such give such notice promptly will not relieve the Indemnifying Party of any of its obligations hereunder, indemnification obligation hereunder except to the extent that the Indemnifying Party is actually and materially prejudiced therebyby such failure. The In case any such action shall be brought against any Indemnified Party, the Indemnifying Party shall have thirty (30) days after receipt of such notice be entitled to participate therein or, at its election, to assume the conduct and control, through defense thereof with counsel reasonably acceptable satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled its election so to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; providedthereof, further, that the Indemnifying Party shall not be entitled liable to assume control of such defense and shall pay the fees and Indemnified Party under this ARTICLE XII for any legal expenses of other counsel retained or any other expenses subsequently incurred by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but thereof (other than reasonable costs of investigation) unless the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that representation of the Indemnified Party by counsel provided by the Indemnifying Party would be inappropriate due to actual or potential conflicting interests between the Indemnified Party and the Indemnifying Party, including situations in which there may be are one or more legal defenses available to the Indemnified Party which that are not different from or additional to those available to the Indemnifying Party; provided, or available to however, that notwithstanding the Indemnifying Party foregoing the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, in connection with any one such action or separate but substantially similar actions arising out of the same general allegations, be liable for the fees and expenses of more than one separate set of counsel at any time for all Indemnified Parties, except with to the extent that local counsel, in addition to their regular counsel, is required in order to effectively defend against such action. No Indemnifying Party shall, without the written consent of the Indemnified Party, enter into effect the settlement or compromise of, or consent to the entry of any settlement that judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnified Party is not entirely indemnifiable by the Indemnifying Party pursuant an actual or potential party to this Agreement and does not include as an unconditional term thereof the giving by the person such action or persons asserting claim) unless such claim to all Indemnified Parties of settlement, compromise or judgment (i) includes an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party from all liability arising out of such action or claim and (ii) does not include a statement as may be reasonably necessary for the preparation to, or an admission of, fault, culpability or a failure to act, by or on behalf of the defense Indemnified Party. No indemnification shall be available in respect of any such settlement of any action or claim or for testimony as witnesses in any proceeding relating to such claimeffected by an Indemnified Party without the prior written consent of the Indemnifying Party.
Appears in 3 contracts
Samples: Merger Agreement (Stratex Networks Inc), Formation, Contribution and Merger Agreement (Harris Corp /De/), Merger Agreement (Harris Corp /De/)
Third Party Claims. If a claim by a third party is made against any Indemnified Party, and if such Indemnified Party party intends to seek indemnity with respect thereto under Section 15this Article XI, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i1) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii2) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii3) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; (4) the Indemnified Party reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would be detrimental to or injure the Indemnified Party’s reputation or future business prospects; (5) the amount claimed by the Indemnified Party (if such Indemnified Party is a Parent Indemnitee) exceeds the value of the shares of Parent Preferred Stock then held by the Escrow Agent or (iv6) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, which authorization shall not be unreasonably withheld, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement Article XI and does not include as an unconditional term thereof the giving by the person Person or persons Persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim.
Appears in 3 contracts
Samples: Merger Agreement (Mobile Mini Inc), Merger Agreement (Mobile Storage Group Inc), Merger Agreement (Mobile Services Group Inc)
Third Party Claims. (a) If a claim any Proceeding is instituted by or against a third party is made against any Indemnified Party, and if such with respect to which the Indemnified Party intends to seek indemnity with respect thereto under Section 15this Article IX (a “Third Party Claim”), such the Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure Third Party Claim and tender to so notify shall not relieve the Indemnifying Party the conduct or defense of its obligations hereundersuch Third Party Claim. A failure by the Indemnified Party to give notice and to tender the conduct or defense of the Third Party Claim in a timely manner pursuant to this Section 9.4 shall not limit the obligation of the Indemnifying Party under this Article IX, except (i) to the extent such Indemnifying Party is materially prejudiced thereby, (ii) with respect to out-of-pocket expenses incurred during the period in which notice was not provided, and (iii) if such notice is not given within the applicable time period provided under Section 9.5
(b) The Indemnifying Party shall have the right to defend the Indemnified Party against such Third Party Claim as provided herein. If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party elects to assume the defense of the Third Party Claim (such election to be without prejudice to the right of the Indemnifying Party to dispute whether such claim is actually an indemnifiable Loss under this Article IX), then the Indemnifying Party shall have the right to defend such Third Party Claim with counsel selected by the Indemnifying Party and materially prejudiced therebyreasonably satisfactory to the Indemnified Party, in all appropriate proceedings, to a final conclusion or settlement in accordance with this Section 9.4(b). The Indemnifying Party shall use reasonably diligent and good faith efforts to defend or prosecute such Third Party Claim and shall keep the Indemnified Party reasonably advised of the status of such claim and defense thereof and shall consider in good faith recommendations made by the Indemnified Party with respect thereto. The Indemnifying Party shall have thirty (30) days after receipt full control of such notice to assume defense and proceedings, including any compromise or settlement thereof; however, neither Party shall enter into any settlement agreement without the conduct and control, through counsel reasonably acceptable to written consent of the Indemnified Party at (which consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding the expense foregoing, such consent shall not be required if (i) the settlement agreement contains a complete and unconditional general release by the third party asserting the Third Party Claim to all Indemnified Parties affected by the claim, (ii) the settlement agreement does not contain any admission of liability by or other obligation on the part of the Indemnifying Party, Indemnified Party or sanction or restriction upon the conduct or operation of any business by the Indemnified Party or its Affiliates and (iii) the settlement does not require any payment to be made by the Indemnified Party to any Person. The Indemnified Party may participate in, but not control, any defense or defense thereof settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 9.4(b), and the Indemnified Party shall cooperate bear its own costs and expenses with it in connection therewithrespect to such participation; provided, however, that (i) if the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses assumes control of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation claim and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; Party have, in the opinion of legal counsel, materially conflicting interests or (iv) upon petition by different defenses available with respect to such claim that cause the Indemnified PartyParty to hire its own separate counsel with respect to such proceeding, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the reasonable fees and expenses of such a single counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion shall be considered “Losses” for purposes of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. this Agreement.
(c) If the Indemnifying Party does not notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 9.4(b) within thirty (30) calendar days after the receipt of any Claim Notice, then the Indemnified Party shall defend, and be reimbursed by the Indemnifying Party for its reasonable cost and expense in regard to the Third Party Claim with counsel selected by the Indemnified Party’s notice of a claim of indemnity hereunder , in all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party; provided, that if it elects is ultimately determined that the Indemnified Party would not be entitled to undertake indemnification hereunder, even if the defense thereoffacts alleged in the Third Party Claim were true as alleged, the Indemnified Party shall promptly repay in full such reimbursed amounts to the Indemnifying Party. In the circumstances described in this Section 9.4(c), the Indemnified Party shall defend any such Third Party Claim in good faith and have full control of such defense and proceedings; provided, however, that the right Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if indemnification is to contestbe sought hereunder, settle or compromise without the claim but Indemnifying Party’s consent (which consent shall not thereby waive any right to indemnity therefor pursuant to this Agreementbe unreasonably withheld, conditioned or delayed). The Indemnifying Party shall notmay participate in, except with the consent of but not control, any defense or settlement controlled by the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement Section 9.4(c), and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability Indemnifying Party shall bear its own costs and expenses with respect to such claim or consent to entry of any judgment. The Indemnifying participation.
(d) If requested by the Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with controlling the defense of a Third Party Claim, the other Party agrees, at the sole cost and expense of such controlling Party (but only if the controlling Party is actually entitled to indemnification hereunder), to cooperate with the controlling Party and its counsel in contesting any claimThird Party Claim being contested, including making providing access to documents, records and information. In addition, the Party that is not controlling the defense will make its personnel available records relating to such claim and furnishing, without expense at no cost to the Indemnifying Party and/or its counselfor conferences, such employees of the Indemnified Party discovery, proceedings, hearings, trials or appeals as may be reasonably necessary for required by the preparation of Indemnifying Party. The Party not controlling the defense also agrees to cooperate with the controlling Party and its counsel in the making of any such claim related counterclaim against the Person asserting the Third Party Claim or for testimony as witnesses in any proceeding relating cross complaint against any Person and executing powers of attorney to such claimthe extent necessary.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Ani Pharmaceuticals Inc), Asset Purchase Agreement (Ani Pharmaceuticals Inc), Asset Purchase Agreement (Ani Pharmaceuticals Inc)
Third Party Claims. (i) If any Person who is not a Party (or an Affiliate thereof) notifies any Indemnified Party with respect to any matter (a “Third Party Claim”) that could be reasonably expected to give rise to a claim by a third party is made against any Indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto for indemnification against any Indemnifying Party under Section 15this Agreement, such then the Indemnified Party shall promptly notify the Indemnifying Party of such claimsby delivering an Indemnification Certificate thereto; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, hereunder except to the extent such failure shall have materially prejudiced the Indemnifying Party (except that the Indemnifying Party will not be liable for any expenses incurred by the Indemnified Party during the period in which the Indemnified Party failed to give such Notice), it being understood and agreed that the failure of the Indemnified Party to so notify the Indemnifying Party prior to settling a Third Party Claim (whether by paying a claim or executing a binding settlement agreement with respect thereto) or the entry of a judgment or issuance of an award with respect to a Third Party Claim shall constitute actual prejudice to the Indemnifying Party’s ability to defend against such Third Party Claim. Thereafter, the Indemnified Party will deliver to the Indemnifying Party, promptly after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received or transmitted by the Indemnified Party relating to the Third Party Claim.
(ii) The Indemnifying Party will have the right to participate in or assume the defense of any Third Party Claim with counsel of the Indemnifying Party’s choice, reasonably satisfactory to the Indemnified Party, so long as (A) the Indemnifying Party notifies the Indemnified Party, within ten (10) days after the Indemnified Party has given Notice of the Third Party Claim to the Indemnifying Party (or by such earlier date as may be necessary under applicable procedural rules in order to file a timely appearance and response) that the Indemnifying Party is actually assuming the defense of such Third Party Claim and materially prejudiced thereby. The will indemnify the Indemnified Party against such Third Party Claim in accordance with this Article 8, (B) the Indemnifying Party shall have thirty (30) days after receipt of such notice to assume provides the conduct and control, through counsel Indemnified Party with evidence reasonably acceptable to the Indemnified Party at the expense of that the Indemnifying PartyParty has and will at all times continue to have the financial resources to defend the Third Party Claim (including any increased losses caused by such defense) and fulfill its indemnification obligations hereunder with respect thereto, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (iC) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume conducts the defense of such action only to the extent the Indemnifying Third Party acknowledges Claim actively and diligently and at its indemnity obligation own costs and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; providedexpense, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim.and
Appears in 3 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement, Asset Purchase Agreement
Third Party Claims. If a claim by a third party is made against any Indemnified Party, and if such (i) In the event that an Indemnified Party intends becomes aware of a Third Party Claim for which an Indemnifying Party would be liable to seek indemnity with respect thereto under Section 15an Indemnified Party hereunder, such the Indemnified Party shall promptly with reasonable promptness notify in writing the Indemnifying Party of such claimsClaim, identifying the basis for such Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such Claim and demand; the "Claim Notice"); provided, however, that the any failure to so notify shall give such Claim Notice will not relieve be deemed a waiver of any rights of the Indemnifying Indemnified Party of its obligations hereunder, except to the extent the rights of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party will notify the Indemnified Party as soon as practicable whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party is actually and materially prejudiced thereby. The desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 9.3(a), the Indemnifying Party shall have thirty retain counsel (30) days after receipt of such notice to assume the conduct and control, through counsel who shall be reasonably acceptable to the Indemnified Party) to represent the Indemnified Party and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party is hereby authorized, prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) Indemnifying Party. After the Indemnifying Party shall permit the Indemnified Party to participate in retain such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Partycounsel, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying such Indemnified Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by and the Indemnified Party of shall have mutually agreed to the existence retention of such claim as provided in the preceding sentence, to assume the defense of such claim, counsel or (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to of any such action proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such the Indemnified Party shall have been advised in writing and representation of both parties by such the same counsel that there may would be one inappropriate because a conflict or more legal defenses available to potential conflict exists between the Indemnifying Party and the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion makes representation of which would be adverse to the interests both Parties inappropriate under applicable standards of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreementprofessional conduct. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim or any cross-complaint against any Person (other than the Indemnified Party or any of its Affiliates). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnifying Party. Notwithstanding the foregoing, the Indemnifying Party shall not settle any claim without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary Damages.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant to the preceding paragraph then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, enter into the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Indemnifying Party or any of its Affiliates). Notwithstanding the foregoing provisions of this paragraph, if the Indemnifying Party has notified the Indemnified Party that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement that is not entirely indemnifiable controlled by the Indemnifying Indemnified Party pursuant to this Agreement paragraph, and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability Indemnifying Party will bear its own costs and expenses with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimparticipation.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Goldwasser Mark), Securities Purchase Agreement (Olympic Cascade Financial Corp), Securities Purchase Agreement (Olympic Cascade Financial Corp)
Third Party Claims. If a claim by a third party is made against
(a) With respect to any Indemnified PartyThird Party Claim, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party will be entitled (but not required), at its expense, to participate in or assume the conduct of such claims; providedthe negotiations, settlement or defence of the Third Party Claim and, in that the failure to so notify shall not relieve event, the Indemnifying Party will reimburse the Indemnified Party for all of its obligations hereunderthe Indemnified Party’s reasonable out-of-pocket expenses incurred in connection with the negotiations, except settlement or defence of the Third Party Claim prior to the extent that Indemnifying Party’s assumption of the conduct of the negotiations, settlement or defence of the Third Party Claim.
(b) If the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice elects to assume the conduct and controlof the negotiations, through settlement or defence of the Third Party Claim, the Indemnifying Party will be entitled to retain counsel reasonably on behalf of the Indemnified Party who is acceptable to the Indemnified Party, acting reasonably, to represent the Indemnified Party of that Third Party Claim. In any Third Party Claim for which the Indemnifying Party elects to assume that conduct, the Indemnified Party will have the right to participate in the negotiation, settlement or defence of that Third Party Claim and to retain separate counsel to act on its behalf but the fees and disbursements of that counsel will be at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that unless:
(i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement determines, acting reasonably and on the written advice of external counsel, that actual or defense through counsel potential conflicts of interests exist which make representation chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled not advisable (such as where the named parties to assume the defense of such action only to the extent the Indemnifying that Third Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between Claim include both the Indemnifying Party and the Indemnified Party, and the defences available to the Indemnified Party are different or in addition to those available to the Indemnifying Party); or
(ii) the Indemnifying Party has authorized the retention of that counsel.
(c) If the Indemnifying Party, having elected to assume that conduct, thereafter fails to defend the Third Party Claim within a reasonable time, the Indemnified Party will be entitled to assume that conduct, and the Indemnifying Party will be bound by the results obtained by the Indemnified Party with respect to that Third Party Claim. If any Third Party Claim is of a nature such that the Indemnified Party is required by Applicable Law to make a payment to any Person (a “Third Party”) with respect to the Third Party Claim before the completion of settlement negotiations or (iv) upon petition related legal proceedings, the Indemnified Party will provide prior written notice of that payment to the Indemnifying Party and thereafter may make that payment and the Indemnifying Party will, forthwith after demand by the Indemnified Party, reimburse the appropriate court rules Indemnified Party for that payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which that payment was made, as finally determined, is less than the amount that was paid by the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any the Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereofParty, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party will, forthwith after receipt of the existence of such claim as provided in difference from the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Third Party, or (z) pay the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel amount of that there may be one or more legal defenses available to the Indemnified Party which are not available difference to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim.
Appears in 3 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement, Share Purchase Agreement
Third Party Claims. If a claim Promptly after the receipt by a third any party is made against of notice of any Indemnified Action by any Third Party, and if which Action is subject to indemnification under this Agreement, such receiving party (the "INDEMNIFIED PARTY") will give reasonable written notice to the party from whom indemnification is claimed (the "INDEMNIFYING PARTY"). The Indemnified Party intends to seek indemnity with respect thereto under Section 15will be entitled, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the sole expense and liability of the Indemnifying Party, to exercise full control of the defense, compromise or settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) of any such Action unless the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that within a reasonable time after the fees and expenses giving of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition notice by the Indemnified Party, (a) admits in writing to the appropriate court rules Indemnified Party the Indemnifying Party's liability to the Indemnified Party for such Action under the terms of this SECTION 11, (b) notifies the Indemnified Party in writing of the Indemnifying Party's intention to assume such defense, (c) provides evidence reasonably satisfactory to the Indemnified Party of the Indemnifying Party's ability to pay the amount, if any, for which the Indemnified Party may be liable as a result of such Action and (d) retains legal counsel reasonably satisfactory to the Indemnified Party to conduct the defense of such Action. The other party will cooperate with the party assuming the defense, compromise or settlement of any such Action in accordance with this Agreement in any manner that such party reasonably may request. If the Indemnifying Party failed or is failing to vigorously prosecute or defend so assumes the defense of any such claim. Any Action, the Indemnified Party shall will have the right to employ separate counsel in any such action or claim and to participate in (but not control) the defense thereofdefense, compromise or settlement of the Action, but the fees and expenses of such counsel shall not will be at the expense of the Indemnifying Indemnified Party unless (xi) the Indemnifying Party shall have failedhas agreed to pay such fees and expenses, within a reasonable time after having been notified by (ii) any relief other than the payment of money damages is sought against the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, or (yiii) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall will have been advised in writing by such its counsel that there may be one or more legal defenses available to the Indemnified Party it which are not different from or additional to those available to the Indemnifying Party, or available and in any such case that portion of the fees and expenses of such separate counsel that are reasonably related to matters covered by the indemnity provided in this SECTION 11 will be paid by the Indemnifying Party. No Indemnified Party will settle or compromise any such Action for which it is entitled to indemnification under this Agreement without the assertion prior written consent of the Indemnifying Party. No Indemnifying Party will settle or compromise any such Action (A) in which would be adverse any relief other than the payment of money damages is sought against any Indemnified Party or (B) in the case of any Action relating to the interests of the Indemnified Party. So long as 's liability for any tax, if the Indemnifying Party is reasonably contesting any effect of such claim settlement would be an increase in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense payment of any such claim or tax for testimony as witnesses any period beginning after the Closing Date, unless the Indemnified Party consents in any proceeding relating writing to such claimcompromise or settlement.
Appears in 3 contracts
Samples: Limited Liability Company Interest Purchase and Sale Agreement (Northland Cable Properties Seven Limited Partnership), Limited Liability Company Interest Purchase and Sale Agreement (Northland Cable Properties Eight Limited Partnership), Limited Liability Company Interest Purchase and Sale Agreement (Northland Cable Television Inc)
Third Party Claims. The “Indemnified Parties” shall mean the Corium Indemnified Parties and the P&G Indemnified Parties. If a claim by a third party is made against any an Indemnified PartyParty hereunder, and if such Indemnified Party intends to seek indemnity with respect thereto under this Section 15, such Indemnified Party shall will promptly notify Corium, in the case of a P&G Indemnified Party, or P&G, in the case of a Corium Indemnified Party (such person to be notified, the “Indemnifying Party Party”) in writing of such claims; providedclaims setting forth such claims in reasonable detail, provided that the failure of such Indemnified Party to so notify shall give prompt notice as provided herein will not relieve the Indemnifying Party of any of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced therebyby such failure. The Indemnifying Party shall will have thirty twenty (3020) days after receipt of such notice to assume the conduct and controlundertake, through counsel reasonably acceptable of its own choosing, subject to the reasonable approval of such Indemnified Party at the expense of the Indemnifying Party, of and at its own expense, the settlement or defense thereof thereof, and the Indemnified Party shall will cooperate with it in connection therewith; provided, however, that (i) the Indemnifying Party shall permit the Indemnified Party to may participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall will be borne by such Indemnified Party. If the Indemnifying Party will assume the defense of a claim, it will not settle such claim without the prior written consent of the Indemnified Party, (a) unless such settlement includes as an unconditional term thereof the giving by the claimant of a release of the Indemnified Party from all Liability with respect to such claim or (b) if such settlement involves the imposition of equitable remedies or the imposition of any material obligations on such Indemnified Party other than financial obligations for which such Indemnified Party will be indemnified hereunder. If the Indemnifying Party will assume the defense of a claim, the fees of any separate counsel retained by the Indemnified Party will be borne by such Indemnified Party and unless there exists a conflict between them as to their respective legal defenses (ii) other than one that is of a monetary nature), in which case the Indemnifying Indemnified Party shall promptly will be entitled to assume retain separate counsel, the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not which will be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing reimbursed by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty twenty (3020) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall will have the right to contest, settle or compromise the claim but shall will not thereby waive any right to indemnity therefor therefore pursuant to this Agreement. The Indemnifying Party shall not, except with indemnification provisions set forth in this Article 15 are the consent sole and exclusive means of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties recovery of an unconditional release from all liability money damages with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claimmatters covered herein, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary except for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimfraud.
Appears in 3 contracts
Samples: License Agreement (Corium International, Inc.), License Agreement (Corium International, Inc.), License Agreement (Corium International, Inc.)
Third Party Claims. If (a) Promptly after receipt by an indemnified party under Section 8.2 or 8.3 of notice of the commencement of any action or proceeding against it, such indemnified party will, if a claim by a third party is to be made against any Indemnified Partyan indemnifying party under such Section, and if such Indemnified Party intends give notice to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party indemnifying party of the commencement of such claims; providedaction or proceeding, that but the failure to so notify shall the indemnifying party will not relieve the Indemnifying Party indemnifying party of its obligations hereunderany liability that it may have to any indemnified party, except to the extent that the Indemnifying Party defense of such action is actually prejudiced by the indemnified party's failure to give such notice.
(b) If any action or proceeding referred to in Section 8.6(a) is brought against an indemnified party and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt it gives notice to the indemnifying party of the commencement of such notice to assume action or proceeding, the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party indemnifying party will be entitled to participate in such settlement action or defense through counsel chosen by proceeding and, to the extent that it wishes (unless the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Indemnified Partyaction or proceeding and provide indemnification with respect to such action or proceeding), provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only or proceeding with counsel reasonably satisfactory to the extent indemnified party and, after notice from the Indemnifying Party acknowledges indemnifying party to the indemnified party of its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, election to assume the defense of such claimaction or proceeding, (y) the employment of indemnifying party will not, as long as it diligently conducts such counsel has been specifically authorized in writing by the Indemnifying Partydefense, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available liable to the Indemnified Party which are not available to the Indemnifying Party, indemnified party under this Section 8 for any fees of other counsel or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability other expenses with respect to the defense of such claim action or consent to entry of any judgment. The Indemnifying Party and proceeding, in each case subsequently incurred by the Indemnified Party shall cooperate with each other in all reasonable respects indemnified party in connection with the defense of any claimsuch action or proceeding, including making available records relating to such claim and furnishing, without expense to other than reasonable costs of investigation. If the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of indemnifying party assumes the defense of an action or proceeding, no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent (which shall not be unreasonably withheld) unless (A) there is no finding or admission of any violation of laws or regulations or any violation of the rights of any person or entity and no effect on any other claims that may be made against the indemnified party and (B) the sole relief provided is monetary damages that are paid in full by the indemnifying party. If notice is given to an indemnifying party of the commencement of any action or proceeding and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such action or proceeding, the indemnifying party will be bound by any determination made in such action or proceeding or any compromise or settlement effected by the indemnified party.
(c) NetRatings hereby consents to the non-exclusive jurisdiction of any court in which an action or proceeding is brought against any Company Indemnified Person for purposes of any claim or for testimony as witnesses in any proceeding relating that a Company Indemnified Person may have under this Agreement with respect to such claimaction or proceeding or the matters alleged therein, and agrees that process may be served on NetRatings with respect to such a claim anywhere in the world. ACN hereby consents to the non-exclusive jurisdiction of any court in which an action or proceeding is brought against any NetRatings Indemnified Person for purposes of any claim that a NetRatings Indemnified Person may have under this Agreement with respect to such action or proceeding or the matters alleged therein, and agrees that process may be served on ACN with respect to such a claim anywhere in the world.
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization (Netratings Inc), Agreement and Plan of Reorganization (Netratings Inc), Merger Agreement (Netratings Inc)
Third Party Claims. If a claim by a third party (a "Third-Party Claim") is made against any a Seller Indemnified Party or Buyer Indemnified Party (collectively, an "Indemnified Party"), and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15this Article X, such Indemnified Party shall promptly notify in writing the Indemnifying Party indemnifying party of such claims; provided, that, that the failure to so promptly notify shall the indemnifying party will not relieve the Indemnifying Party indemnifying party of its obligations hereunderany liability it may have to the indemnified party, except to the extent that the Indemnifying indemnifying party demonstrates that the defense of such Third-Party Claim is actually and materially prejudiced therebyby the indemnified party's failure to give notice within such time period. The Indemnifying Party indemnifying party shall have thirty (30) 30 days after receipt of such notice to assume the undertake, conduct and control, through counsel reasonably acceptable to the Indemnified Party of its own choosing and at the expense of the Indemnifying Partyits own expense, of the settlement or defense thereof thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, provided that (i) the Indemnifying Party indemnifying party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) Party. If the Indemnifying Party shall promptly be entitled indemnifying party so chooses to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation it shall do so promptly and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Partydiligently. So long as the Indemnifying Party indemnifying party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that that, in such event event, it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlementindemnifying party. If the Indemnifying Party indemnifying party does not notify the Indemnified Party in writing within thirty (30) 30 days after the receipt of the Indemnified Party’s 's written notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party indemnifying party shall not, except with the written consent of the Indemnified Party, enter into any settlement unless (A) there is no finding or admission of any violation of Applicable Law, (B) the sole relief provided is monetary damages that is not entirely indemnifiable are paid in full by the Indemnifying indemnifying party, (C) the indemnified party or its Affiliates shall have no liability with respect to any compromise or settlement of such Third-Party pursuant to this Agreement Claim, and does not include as an unconditional term thereof (D) the giving by the person compromise or persons asserting such claim settlement provides to all Indemnified Parties of indemnified parties and their Affiliates and agents an unconditional release from all liability with respect to such claim Third-Party Claim or consent the facts underlying such Third-Party Claim. With respect to entry of any judgment. The Indemnifying Third-Party Claim subject to indemnification under this Article X, (i) both the Indemnified Party and the Indemnified indemnifying party, as the case may be, shall keep the other party reasonably informed of the status of such Third-Party shall Claim and any related proceedings at all stages thereof, (ii) the parties agree to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in all reasonable respects in connection with order to ensure the proper and adequate defense of any claimThird-Party Claim and (iii) with respect to any Third-Party Claim subject to indemnification under this Article X, including making available records relating the parties agree to cooperate in such claim and furnishing, without expense a manner as to preserve in full (to the Indemnifying Party and/or its counsel, such employees extent possible) the confidentiality of all confidential information and the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimattorney-client and work-product privileges.
Appears in 3 contracts
Samples: Asset Purchase Agreement (National Australia Bank LTD), Asset Purchase/Liability Assumption Agreement (Homeside International Inc), Asset Purchase/Liability Assumption Agreement (Homeside Lending Inc)
Third Party Claims. If a claim by a third party any demand, claim, action or cause of action, suit, proceeding or investigation (collectively, the “Claim”) is made brought against any an Indemnified Party, and if such Party for which the Indemnified Party intends to seek indemnity with respect thereto under Section 15from the other party hereto (the “Indemnifying Party”), then the Indemnified Party within twenty-one (21) days after such Indemnified Party's receipt of the Claim, shall notify the Indemnifying Party pursuant to Paragraph “C” of Article “21” of this Agreement which notice shall contain a reasonably thorough description of the nature and amount of the Claim (the “Claim Notice”). The Indemnifying Party shall promptly have the option to undertake, conduct and control the defense of such claim or demand. Such option to undertake, conduct and control the defense of such claim or demand shall be exercised by notifying the Indemnified Party within ten (10) days after receipt of the Claim Notice pursuant to Paragraph “C” of Article “21” of this Agreement (such notice to control the defense is hereinafter referred to as the “Defense Notice”). The failure of the Indemnified Party to notify the Indemnifying Party of such claims; provided, that the failure to so notify Claim shall not relieve the Indemnifying Party from any liability which the Indemnifying Party may have pursuant to this Article “18” of its obligations hereunder, this Agreement except to the extent that such failure to notify the Indemnifying Party is actually and materially prejudiced therebyprejudices the Indemnifying Party. The Indemnified Party shall use all reasonable efforts to assist the Indemnifying Party shall have thirty (30) days after receipt in the vigorous defense of such notice to assume the conduct Claim. All costs and control, through counsel reasonably acceptable to expenses incurred by the Indemnified Party at in defending the expense of Claim shall be paid by the Indemnifying Party. If, of the settlement or defense thereof and however, the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party desires to participate in any such settlement defense or defense through counsel chosen by such Indemnified Partysettlement, provided that the fees it may do so at its sole cost and expenses of such counsel shall be borne by such Indemnified Party and expense (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, it being understood that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimdefense). Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the The Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlementClaim. If the Indemnifying Party does not notify elect to control the defense of the Claim, within the aforesaid ten (10) day period by proper notice pursuant to Paragraph “C” of Article “21” of this Agreement, then the Indemnified Party shall be entitled to undertake, conduct and control the defense of the Claim (a failure by the Indemnifying Party to send the Defense Notice to the Indemnified Party within thirty the aforesaid ten (3010) days after day period by proper notice pursuant to Paragraph “C” of Article “21” of this Agreement shall be deemed to be an election by the receipt Indemnifying Party not to control the defense of the Indemnified Party’s notice of a claim of indemnity hereunder Claim); provided, however, that the Indemnifying Party shall be entitled, if it elects so desires, to undertake the defense thereofparticipate therein (it being understood that in such circumstances, the Indemnified Party shall have be entitled to control the right defense). Regardless of which party has undertaken to contestdefend any claim, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall notmay, except with without the prior written consent of the Indemnified Party, enter into settle, compromise or offer to settle or compromise any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or demand; provided however, that if any settlement would result in the imposition of a consent to entry order, injunction or decree which would restrict the future activity or conduct of any judgment. The Indemnifying Party and the Indemnified Party, the consent of the Indemnified Party shall cooperate with each other in all reasonable respects in connection with be a condition to any such settlement. Notwithstanding the defense foregoing provisions of any claimthis Article “18” of this Agreement, including making available records relating to such claim and furnishing, without expense as a condition to the Indemnifying Party and/or either having the right to defend the Claim, or having control over settlement as indicated in this Article “18” of this Agreement, the Indemnifying Party shall execute an agreement, in the form annexed hereto and made a part hereof as Exhibit “F”, acknowledging its counselliability for indemnification pursuant to this Article “18” of this Agreement. Whether the Indemnifying Party shall control and assume the defense of the Claim or only participate in the defense or settlement of the Claim, such employees of the Indemnified Party as may be reasonably necessary for shall give the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating Indemnifying Party and its counsel access, during normal business hours, to such claimall relevant business records and other documents, and shall permit them to consult with its employees and counsel.
Appears in 3 contracts
Samples: Exclusive License Agreement (Oiltek, Inc.), Exclusive License Agreement (Oiltek, Inc.), Exclusive License Agreement (Oiltek, Inc.)
Third Party Claims. If (a) A party entitled to indemnification hereunder (an “Indemnified Party”) shall notify promptly the indemnifying party (the “Indemnifying Party”) in writing of the commencement of any action or proceeding with respect to which a claim by a third party is for indemnification may be made against any Indemnified Party, and if such Indemnified Party intends pursuant to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party of such claimsthis Agreement; provided, however, that the failure of any Indemnified Party to so notify provide such notice shall not relieve the Indemnifying Party of its obligations hereunderunder this Agreement, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation is actually materially prejudiced thereby. In case any claim, action or proceeding is brought against an Indemnified Party and assumes the Indemnified Party notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and holds to assume the defense thereof, to the extent that it chooses, with counsel reasonably satisfactory to such Indemnified Party, and after notice from the Indemnifying Party to such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; providedthat it so chooses, further, that the Indemnifying Party shall not be entitled liable to assume control such Indemnified Party for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that (i) if the Indemnifying Party fails to take reasonable steps necessary to defend diligently the action or proceeding within twenty (20) calendar days after receiving notice from such defense and shall pay the fees and expenses of counsel retained by Indemnified Party that the Indemnified Party if (i) the claim for indemnification relates believes it has failed to do so, or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the if such Indemnified Party has been advised who is a defendant in writing by counsel that a reasonable likelihood exists of a conflict of interest between any claim or proceeding which is also brought against the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party reasonably shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel concluded that there may be one or more legal defenses available to the such Indemnified Party which are not available to the Indemnifying Party, or available to (iii) if representation of both parties by the Indemnifying Party the assertion same counsel is otherwise inappropriate under applicable standards of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting professional conduct, then, in any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoingcase, the Indemnified Party shall have the right to pay assume or settle any such claimcontinue its own defense as set forth above (but with no more than one firm of counsel for all Indemnified Parties in each jurisdiction), provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless and the Indemnifying Party shall have consented to such payment or settlement. If the be liable for any expenses therefor.
(b) No Indemnifying Party does not notify shall, without the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the written consent of the Indemnified Party, enter into effect the settlement or compromise of, or consent to the entry of any settlement that judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is not entirely indemnifiable by the Indemnifying Party pursuant an actual or potential party to this Agreement and does not include as an unconditional term thereof the giving by the person such action or persons asserting claim) unless such claim to all Indemnified Parties of settlement, compromise or judgment (i) includes an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party from all liability arising out of such action or claim, (ii) does not include a statement as may be reasonably necessary for to or an admission of fault, culpability or a failure to act, by or on behalf of any Indemnified Party and (iii) does not include any injunctive or other non-monetary relief to the preparation detriment of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimIndemnified Party.
Appears in 3 contracts
Samples: Exchange Agreement (ATRM Holdings, Inc.), Exchange Agreement (ATRM Holdings, Inc.), Exchange Agreement (Lone Star Value Management LLC)
Third Party Claims. If a claim by a third party is made (a) Subject to Clause 16.2(b) below, Shelter Management Agency (the “Indemnifying Party”) undertakes to indemnify the DUSIB (the “Indemnified Party”) from and against all losses, claims or damages on account of bodily injury, death or damage to any person, corporation or other entity (including the Indemnified Party) attributable to the Indemnifying Party's performance or non-performance under this Agreement.
(b) The indemnities set out in this Clause shall be subject to the following conditions:
i. the Indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15as promptly as practicable, such Indemnified Party shall promptly notify informs the Indemnifying Party in writing of such claims; providedthe claim or proceedings and provides all relevant evidence, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced therebydocumentary or otherwise;
ii. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party may at its option (but shall not be obligated to), at the expense cost of the Indemnifying Party, give the Indemnifying Party all reasonable assistance in the defense of such claim including reasonable access to all relevant information, documentation and personnel provided that the settlement Indemnified Party may, at its sole cost and expense, reasonably participate, through its attorneys or otherwise, in such defense;
iii. if the Indemnifying Party does not assume full control over the defense thereof of a claim as provided in this Clause, the Indemnified Party may at its option participate in such defense at its sole cost and expense, and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall will have the right to employ separate counsel defend the claim in any such action or claim manner as it may deem appropriate, and to participate in the defense thereof, but the fees cost and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided will be included in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified PartyLosses;
iv. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not prejudice, pay or settle accept any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay proceedings or settle any such claim, provided that in such event it shall waive or compromise any right to indemnity therefor by proceedings or claim, without the written consent of the Indemnifying Party for such claim unless the Indemnifying Party shall have consented Party;
v. all settlements of claims subject to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty indemnification under this Clause will: (30aa) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except be entered into only with the consent of the Indemnified Party, enter into any settlement that is which consent will not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement be unreasonably withheld and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release to the Indemnified Party from the claimant for all liability with in respect to of such claim or consent to entry claim; and (ab) include any appropriate confidentiality agreement prohibiting disclosure of any judgmentthe terms of such settlement; and
vi. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense account to the Indemnifying Party and/or its counselfor all awards, such employees settlements, damages and costs (if any) finally awarded in favor of the Indemnified Party as may which are to be reasonably necessary for the preparation of the defense of paid to it in connection with any such claim or for testimony as witnesses in any proceeding relating to such claimproceedings.
Appears in 3 contracts
Samples: Shelter Management Agreement, Shelter Management Agreement, Shelter Management Agreement
Third Party Claims. If All claims for indemnification made under this Agreement resulting from, related to or arising out of a third party claim against an Indemnified Party (a “Third Party Claim”) shall be made in accordance with the following procedures. A Person entitled to indemnification under this Article V (an “Indemnified Party”) shall give prompt written notification to the Indemnifying Party (a “Third Party Claim Notice”) of the commencement of any action, suit or proceeding relating to a third party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a third party is made against party. For purposes of this Agreement, “Indemnifying Party” means (i) in the case of a claim for indemnification by the Buyer (or any other Buyer Indemnified Party), the Seller, and if (ii) in the case of a claim for indemnification by the Seller (or any other Seller Indemnified Party), the Buyer. Such Third Party Claim Notice shall include a description in reasonable detail (to the extent then known by the Indemnified Party) of (A) the facts constituting the basis for such Third Party Claim and (B) the amount of the Damages claimed (the “Third Party Claim Amount”). No delay or failure on the part of the Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify in so notifying the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, any liability or obligation hereunder except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds is actually prejudiced thereby. Within [**] after receipt of such Third Party Claim Notice, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense with counsel reasonably satisfactory to the Indemnified Party harmless from and against the full amount of any Loss resulting therefromsuch Third Party Claim seeking (i) solely monetary damages or (ii) injunctive relief that would be reasonably expected to be immaterial to the operations or business of the Indemnified Party and monetary damages; providedprovided that prior to the assumption of the defense of any Third Party Claim, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel provide a written undertaking confirming that a reasonable likelihood exists of a conflict of interest as between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, assuming the facts alleged in such Third Party and such Indemnified Party shall Claim are true, that it would have been advised in writing by an indemnity obligation for Damages resulting from such counsel that there may be one or more legal defenses available Third Party Claim (subject to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlementlimitations set forth herein). If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt assume control of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereofsuch defense, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreementcontrol such defense. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement party not controlling such defense may participate therein at its own expense; provided that is not entirely indemnifiable by if the Indemnifying Party pursuant to this Agreement assumes control of such defense and does not include as an unconditional term thereof the giving by Indemnified Party reasonably concludes, based on advice from outside counsel, that the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate have conflicting interests with each other in all respect to such action, suit, proceeding or claim, the reasonable respects fees and expenses of counsel to the Indemnified Party solely in connection with the defense therewith shall be considered “Damages” for purposes of any claimthis Agreement; provided, including making available records relating to such claim and furnishinghowever, without expense to that in no event shall the Indemnifying Party and/or its counselbe responsible for the fees and expenses of more than one (1) counsel for the Indemnified Party. The party controlling such defense shall keep the other party reasonably advised of the status of such action, suit, proceeding or claim and the defense thereof. The Indemnified Party shall not agree to any settlement of such employees action, suit, proceeding or claim without the prior written consent of the Indemnifying Party. The Indemnifying Party shall not agree to any settlement of such action, suit, proceeding or claim that (x) does not include a complete release of the Indemnified Party as may be reasonably necessary for from all liability with respect thereto, (y) includes any admission by, or finding adverse to, the preparation Indemnified Party or (z) imposes any liability or obligation on the Indemnified Party, in each case, without the prior written consent of the defense of any such claim Indemnified Party (not to be unreasonably withheld, conditioned or for testimony as witnesses in any proceeding relating to such claimdelayed).
Appears in 3 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Translate Bio, Inc.), Asset Purchase Agreement (Translate Bio, Inc.)
Third Party Claims. If All claims for indemnification made under this Agreement resulting from, related to or arising out of a third-party claim against an Indemnified Party shall be made in accordance with the following procedures. An Indemnified Party shall give prompt written notification to the Indemnifying Party of the commencement of any action, suit or proceeding relating to a third-party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a third party. Such notification shall include a description in reasonable detail (to the extent known by the Indemnified Party) of the facts constituting the basis for such third-party is made against any claim and the amount of the Damages claimed. Within 30 days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party assume control of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictmentsuit, allegation proceeding or investigation; (ii) the claim seeks an injunction or equitable relief against with counsel reasonably satisfactory to the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt assume control of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereofsuch defense, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreementcontrol such defense. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement not controlling such defense may participate therein at its own expense; provided that is not entirely indemnifiable by if the Indemnifying Party pursuant to this Agreement assumes control of such defense and does not include as an unconditional term thereof the giving by Indemnified Party reasonably concludes, based on advice from counsel, that the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate have conflicting interests with each other in all respect to such action, suit, proceeding or claim, the reasonable respects fees and expenses, not to exceed US$25,000 per claim, of counsel to the Indemnified Party solely in connection with therewith shall be considered “Damages” for purposes of this Agreement. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of any claimsuch action, including making available records relating to such suit, proceeding or claim and furnishing, without expense to the prior written consent of the Indemnifying Party. The Indemnifying Party and/or its counselshall not agree to any settlement of such action, such employees suit, proceeding or claim that does not include a complete release of the Indemnified Party as may be reasonably necessary for from all liability with respect thereto or that imposes any liability or obligation on the preparation Indemnified Party without the prior written consent of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimIndemnified Party.
Appears in 3 contracts
Samples: Asset Purchase Agreement (AuraSound, Inc.), Asset Purchase Agreement (AuraSound, Inc.), Asset Purchase Agreement (AuraSound, Inc.)
Third Party Claims. If a claim by a third party is made against any Indemnified Party, and if such (a) The Indemnified Party intends agrees to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify give the Indemnifying Party notice in writing of such claimsthe assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the failure to so notify shall not relieve the Indemnifying Party of its obligations indemnification provided hereunder, except to the extent that the Indemnifying Party is actually and will have been materially prejudiced therebyas a result of such delay. The From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party shall will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days after (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of such notice the Indemnification Notice with respect to assume a Third Party Claim (the conduct and control, through counsel reasonably acceptable “Defense Notice Period”) to notify the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled its election to assume the defense of such action only Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party acknowledges its indemnity obligation is required to indemnify and assumes and holds such hold harmless the Indemnified Party harmless from from, against and against the full amount in respect of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained Losses incurred or suffered by the Indemnified Party if (i) to the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) extent arising from such Third Party Claim. If the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) Indemnifying Party notifies the Indemnified Party has been advised in writing by counsel within the Defense Notice Period that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing it elects to vigorously prosecute or defend such claim. Any Indemnified Third Party shall Claim, it will have the right to employ separate so defend at its expense, with counsel in any such action or claim and selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, but including the fees opportunity to participate in any discussions or correspondence with any Governmental Entity, and expenses of such to employ counsel shall not be at separate from the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing employed by the Indemnifying Party, or . The Indemnified Party will participate in any such defense at its own expense unless (zA) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with each other in all reasonable respects in connection jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with the defense one or more of any claim, including making those that may be available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its counsel, such employees desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as may be reasonably necessary for the preparation of provided in Section 7.3(b)(i); or (z) after assuming the defense of any a Third Party Claim, fails to conduct the defense of such claim or Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for testimony as witnesses in any proceeding relating to such claimThird Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Atlas Financial Holdings, Inc.), Stock Purchase Agreement (Atlas Financial Holdings, Inc.)
Third Party Claims. (a) If a claim by a third party is made against any Indemnified PartyParty (a Third Party Claim), and if such Indemnified Party party intends to seek indemnity with respect thereto under Section 15this Article 7, such Indemnified Party shall promptly notify the Indemnifying Party of such claimsThird Party Claim; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified of such Third Party shall cooperate with it in connection therewithClaim; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party; provided, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefromParty; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (iA) the claim such Third Party Claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (iiB) the claim such Third Party Claim seeks an injunction or equitable relief against the Indemnified PartyParty and does not otherwise seek monetary damages; (iiiC) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a there is an actual conflict of interest between the Indemnifying Party and the Indemnified Party; or (ivD) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Third Party Claim.
(b) Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereofof such Third Party Claim, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (xi) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentenceor is not entitled, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized Third Party Claim in writing by the Indemnifying Partyaccordance with Section 7.7(a), or (zii) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one (1) or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the The Indemnified Party shall not pay or settle any such claimThird Party Claim without the prior written consent of the Indemnifying Party, not to be unreasonably withheld. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claimThird Party Claim; provided, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless Third Party Claim, and the Indemnifying Party related settlement payments or other actions taken in settlement shall have consented to such payment or settlement. not constitute “Losses” under this Agreement.
(c) If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim Third Party Claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim Third Party Claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. .
(d) The Indemnifying Party shall not, except with the consent of the Indemnified Party, not to be unreasonably withheld, enter into any settlement that unless such settlement (i) is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include Article 7, (ii) includes as an unconditional term thereof the giving by the person or persons asserting such claim Third Party Claim to all Indemnified Parties of an unconditional release from all liability Liabilities with respect to such claim Third Party Claim or consent to entry of any judgment. judgment and (iii) does not impose any injunctive relief or other restrictions of any kind or nature on any Indemnified Party.
(e) The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claimThird Party Claim, including making available records relating to such claim Third Party Claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim Third Party Claim or for testimony as witnesses in any proceeding relating to such claimThird Party Claim.
Appears in 2 contracts
Samples: Master Contribution and Share Subscription Agreement (Roivant Sciences Ltd.), Master Contribution and Share Subscription Agreement (Roivant Sciences Ltd.)
Third Party Claims. If a claim by a third party is made against any Indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such (a) Each Indemnified Party shall promptly notify the Indemnifying Party of such claims; providedthe assertion by any third party of any claim for which the indemnification set forth in this Section relates (which shall also constitute the notice required by Section 7.3), that the but failure to so notify give such notice within any particular time period shall not relieve adversely affect the Indemnifying Party of its obligations hereunder, except Indemnified Party’s rights to the extent that the Indemnifying Party is actually and materially prejudiced thereby. indemnification.
(b) The Indemnifying Party shall have thirty (30) days after receipt of such the right, upon written notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at within 30 days after the expense receipt of any notice provided under Section 7.4(a), to undertake the defense of such claim. The failure of the Indemnifying Party to give such notice and to undertake the defense of such a claim shall constitute a waiver of the Indemnifying Party, ’s rights under this Section 7.4 and in the absence of gross negligence or willful misconduct on the settlement or defense thereof and part of the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) preclude the Indemnifying Party shall permit from disputing the manner in which the Indemnified Party may conduct the defense of such claim or the reasonableness of any amount paid by the Indemnified Party in satisfaction of such claim.
(c) Notwithstanding subsection (b) above, absent the prior written consent of the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Partythe contrary, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled have the right to assume control of such the defense and shall pay of the fees and expenses of counsel retained by the Indemnified Party if claim (i) if the claim seeks an injunction or equitable relief against the Indemnified Party, (ii) if the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation allegation, or investigation; (ii) the claim seeks investigation against an injunction or equitable relief against the Indemnified Party; , or (iii) the Indemnified Party unless it has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between admitted to an indemnification obligation under this Agreement with respect to such claim, which admission shall constitute the Indemnifying Party Party’s undertaking to pay directly all costs, expenses, damages, judgments, awards, penalties, and assessments incurred in connection therewith. With the Indemnified Party; or (iv) upon petition by prior written consent of the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume may undertake the defense of such claim, (y) the employment of such counsel a claim without admitting that it has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Partyan indemnification obligation under this Agreement. So long as the Indemnifying Party is reasonably contesting any such defending a claim actively and in good faith, the Indemnified Party shall not pay settle such claim. The Indemnified Party shall make available to the Indemnifying Party and its representatives all records and other materials reasonably required by them and in the possession or settle under the control of the Indemnified Party for the use by the Indemnifying Party and its representatives in defending any such claim, and shall in other respects give reasonable cooperation in such defense.
(d) The Indemnifying Party must obtain the prior written consent of the Indemnified Party (which the Indemnified Party will not unreasonably withhold) before entering into any settlement or compromise of such claim or proceeding or ceasing to defend such claim or proceeding. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless may, without the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the prior written consent of the Indemnified Party, enter into settle or compromise any settlement that third-party claim, which is not paid entirely indemnifiable by the Indemnifying Party pursuant Party, or consent to this Agreement the entry of judgment with respect to a third-party claim, provided such settlement, compromise, or judgment relates only to the payments of monetary damages and does not include includes, as an unconditional term thereof the giving by the person or persons asserting such claim to thereof, a full and complete release of all Indemnified Parties by the claimant or the plaintiff of an unconditional release from all liability with respect to such claim unless an Indemnified Party determines in good faith that there is a reasonable probability that the proposed settlement or consent to entry compromise could adversely affect it or its Affiliates other than as a result of any judgment. monetary damages.
(e) The election by the Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with pursuant to Section 7.4(b) to undertake the defense of any claim, including making available records relating to a third-party claim shall not preclude the party against which such claim has been made also from participating or continuing to participate in such defense, so long as such party bears its own legal fees and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary expenses for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimso doing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (InfoLogix Inc), Asset Purchase Agreement (InfoLogix Inc)
Third Party Claims. If (i) In the event that any third party (including any Governmental Body) asserts a claim by a third party is made against any an Indemnified Party, and if Party for which such Indemnified Party intends to seek indemnity with respect thereto under Section 15from the Indemnifying Party, such then the Indemnified Party shall promptly notify the Indemnifying Party of such claims; providedclaim or demand and the amount thereof, that if known, or an estimate thereof, if reasonably capable of estimation (the “Claim Notice”), but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnifying Indemnified Party of its obligations hereunder, under this Article 11 except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. by the Indemnified Party’s failure to give such notice.
(ii) The Indemnifying Party shall have thirty fifteen (3015) days after receipt from Claim Notice to undertake, conduct and control the defense of such notice third party claim; provided, that pending the Indemnifying Party’s decision whether to assume exercise its right to undertake the conduct and controlcontrol of the settlement or defense of any third party claim, the Indemnified Party shall undertake, conduct and control the settlement or defense thereof, through counsel of its own choosing if the failure to so act during such period might reasonably be expected to have a material adverse effect on the Indemnified Party, and provided further that (A) the Indemnifying Party notifies the Indemnified Party, in writing, within such 15 days that the Indemnifying Party will assume the defense of the third party claim and pay all attorneys’ fees and other third party defense costs in connection therewith, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party at that the expense Indemnifying Party will have the financial resources to defend against the third party claim and fulfill its indemnification obligations hereunder, and, if the amount subject to third party claim exceeds the applicable Indemnity Cap of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate waives in writing such settlement or defense through counsel chosen by such Indemnified PartyIndemnity Cap, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (iiC) the Indemnifying Party shall promptly be entitled to assume the defense of such action third party claim involves only to the extent the Indemnifying Party acknowledges its indemnity obligation money damages and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall does not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks seek an injunction or other equitable relief against relief, (D) settlement of, or an adverse judgment with respect to, the Indemnified Party; (iii) third party claim is not, in the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists good faith judgment of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed likely to establish a precedential custom or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be practice adverse to the continuing business interests of the Indemnified Party, and (iv) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently.
(iii) All costs and expenses incurred by the Indemnifying Party in defending such third party claim shall be paid by the Indemnifying Party. If the Indemnifying Party assumes such defense, the Indemnified Party may participate in, but not control, any such defense or settlement, at its sole cost and expense. So long as the Indemnifying Party is reasonably contesting any defending such third party claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such third party claim; provided, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. Party.
(iv) If the Indemnifying Party does not notify the Indemnified Party within thirty (30) 30 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder Claim Notice that it elects to undertake the settlement or defense thereof, the Indemnified Party shall have the right to conduct and control the defense thereof and to contest, settle or compromise the third party claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. .
(v) The Indemnifying Party shall not, except with without the prior written consent of the Indemnified Party, enter into settle, compromise or offer to settle or compromise any third party claim unless: (x) such settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include or judgment includes as an unconditional term thereof the giving by the person Person or persons Persons asserting such claim to all Indemnified Parties of an unconditional release from all liability Liability with respect to such claim and (y) the relief provided in connection with such settlement or consent to entry judgment effected by the Indemnifying Party is satisfied entirely by the Indemnifying Party. To the extent the Indemnifying Party shall control or participate in the defense or settlement of any judgment. The third party claim or demand, the Indemnified Party will give to the Indemnifying Party and its counsel access to, during normal business hours, the relevant books and records, and shall permit them to consult with the employees and counsel of the Indemnified Party. The Indemnified Party shall use commercially reasonable efforts to cooperate in the defense of all such claims.
(vi) With respect to any pending action or proceeding subject to indemnification under this Article 11, the parties shall cooperate in such a manner as to preserve in full (to the extent possible) the confidentiality of all confidential business records and the attorney-client and work-product privileges. In connection therewith, (A) each party shall use its commercially reasonable efforts, in any action or proceeding in which he or it has assumed or participated in the defense, to avoid production of confidential business records (consistent with each other applicable law and rules of procedure), and (B) all communications between any party hereto and counsel responsible for or participating in all reasonable respects in connection with the defense of any claimaction or proceeding shall, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counselextent possible, such employees of the Indemnified Party be made so as may be reasonably necessary for the preparation of the defense of to reserve any such claim applicable attorney-client or for testimony as witnesses in any proceeding relating to such claimwork-product privilege.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Broadwind Energy, Inc.), Stock Purchase Agreement (Tower Tech Holdings Inc.)
Third Party Claims. If a claim by a third party is made against any an Indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify Purchaser or Parent, whichever is the party with respect to which a request for indemnification may be made (the “Indemnifying Party Party”) of such claims; provided, that the claim. The failure to so notify provide such notice shall not relieve the Indemnifying Party result in a waiver of its obligations hereunder, any right to indemnification hereunder except to the extent that the Indemnifying Party is actually and materially prejudiced therebyby such failure. The Indemnifying Party shall have thirty fifteen (3015) days after receipt of such notice to assume the elect to undertake, conduct and control, through counsel reasonably acceptable to the Indemnified Party of its own choosing and at the expense of the Indemnifying Partyits own expense, of the settlement or defense thereof (provided that contemporaneously with so assuming the settlement or defense the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party in respect of such claim), and the Indemnified Party shall cooperate with it the Indemnifying Party in connection therewith; provided. Notwithstanding the foregoing, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the Indemnifying Party’s expense of the Indemnifying Party unless if (xa) the Indemnifying Party shall have failed, within a reasonable time after having been notified by fails to acknowledge in writing its obligation to indemnify the Indemnified Party of the existence in respect of such claim as provided in within thirty (30) days of the preceding sentencereceipt of such notice, (b) the Indemnifying Party fails to assume employ counsel reasonably satisfactory to the Indemnified Party, (c) the Indemnifying Party fails to diligently prosecute the defense of any such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, claims or (zd) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by that a conflict of interest may exist if the same counsel were to represent such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to and the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the The Indemnified Party shall not pay or settle any such claim. Notwithstanding claim without the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by prior written consent of the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but which consent shall not thereby waive any right to indemnity therefor pursuant to this Agreementbe unreasonably withheld). The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim judgment or for testimony as witnesses in any proceeding relating to such claimthat imposes injunctive or equitable relief.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (HSI IP, Inc.), Purchase and Sale Agreement (Home Depot Inc)
Third Party Claims. (i) If any Person who is not a Party (or an Affiliate thereof) notifies any Indemnified Party with respect to any matter (a “Third Party Claim”) that could be reasonably expected to give rise to a claim by a third party is made against any Indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto for indemnification against any Indemnifying Party under Section 15this Agreement, such then the Indemnified Party shall promptly notify the Indemnifying Party of such claimsby delivering an Indemnification Certificate thereto; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, hereunder except to the extent such failure shall have materially prejudiced the Indemnifying Party (except that the Indemnifying Party will not be liable for any expenses incurred by the Indemnified Party during the period in which the Indemnified Party failed to give such Notice), it being understood and agreed that the failure of the Indemnified Party to so notify the Indemnifying Party prior to settling a Third Party Claim (whether by paying a claim or executing a binding settlement agreement with respect thereto) or the entry of a judgment or issuance of an award with respect to a Third Party Claim shall constitute actual prejudice to the Indemnifying Party’s ability to defend against such Third Party Claim. Thereafter, the Indemnified Party will deliver to the Indemnifying Party, promptly after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received or transmitted by the Indemnified Party relating to the Third Party Claim.
(ii) The Indemnifying Party will have the right to participate in or assume the defense of any Third Party Claim with counsel of the Indemnifying Party’s choice, reasonably satisfactory to the Indemnified Party, so long as (A) the Indemnifying Party notifies the Indemnified Party, within ten (10) days after the Indemnified Party has given Notice of the Third Party Claim to the Indemnifying Party (or by such earlier date as may be necessary under applicable procedural rules in order to file a timely appearance and response) that the Indemnifying Party is actually assuming the defense of such Third Party Claim and materially prejudiced thereby. The will indemnify the Indemnified Party against such Third Party Claim in accordance with this Article 8, (B) the Indemnifying Party shall have thirty (30) days after receipt of such notice to assume provides the conduct and control, through counsel Indemnified Party with evidence reasonably acceptable to the Indemnified Party at the expense of that the Indemnifying PartyParty has and will at all times continue to have the financial resources to defend the Third Party Claim (including any increased losses caused by such defense) and fulfill its indemnification obligations hereunder with respect thereto, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (iC) the Indemnifying Party shall permit conducts the Indemnified defense of the Third Party to participate in such settlement or defense through counsel chosen by such Indemnified PartyClaim actively and diligently and at its own costs and expense, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (iiD) the Third Party Claim does not involve injunctive relief, specific performance or other similar equitable relief, any Claim in respect of Taxes, any Governmental Authority or any potential damage to the goodwill or reputation of SEARHC, the goodwill or reputation of the City, or the Business.
(iii) So long as the conditions set forth in Section 8.3(b)(ii) are and remain satisfied, then (A) the Indemnifying Party shall promptly be entitled to assume may conduct the defense of such action only to the extent the Indemnifying Third Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; providedClaim in accordance with Section 8.3(b)(ii), further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iiiB) the Indemnified Party has been advised in writing by may retain separate co- counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party at its sole cost and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and expense to participate in the defense thereofof the Third Party Claim, but it being understood that the fees and expenses Indemnifying Party will control such defense subject to the limitations set out in this Section 8.3(b), (C) the Indemnified Party will not consent to the entry of such counsel shall not be at any judgment or enter into any settlement with respect to the expense Third Party Claim without the prior written consent of the Indemnifying Party unless (xnot to be unreasonably withheld, conditioned or delayed), (D) the Indemnifying Party shall have failedwill not consent to the entry of any judgment with respect to the Third Party Claim, within a reasonable time after having been notified by or enter into any settlement, which either imposes an injunction or other equitable relief upon the Indemnified Party of or does not include a provision whereby the existence of such claim as provided plaintiff or claimant in the preceding sentencematter releases the Indemnified Party from all Liability with respect thereto, to assume and (E) the Indemnified Party shall, at the Indemnifying Party’s request and at the Indemnifying Party’s expense, cooperate in the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimmatter.
Appears in 2 contracts
Third Party Claims. If The obligations and liabilities of an Indemnifying Party with respect to Losses resulting from the assertion of liability by third parties (each, a claim “Third Party Claim”) shall be subject to the following terms and conditions:
(a) The Indemnified Parties shall promptly give written notice (a “Claim Notice”) to the Indemnifying Parties of any Third Party Claim that might give rise to any Loss by a third party is made against any the Indemnified PartyParties, stating in reasonable detail the nature and basis of such Third Party Claim, and if such Indemnified Party intends the amount thereof to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party of such claimsextent known (the “Claimed Amount”); provided, however, that no delay on the failure to so notify part of the Indemnified Parties in notifying any Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except from any obligation hereunder unless (and then solely to the extent that extent) the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Such notice shall be accompanied by copies of all relevant documentation with respect to such Third Party shall Claim, including any summons, complaint or other pleading which may have thirty been served, any written demand or any other document or instrument.
(30b) days From and after receipt of such notice of a Third Party Claim pursuant to assume Section 7.3(b), the conduct and controlIndemnifying Parties shall have the right to conduct, through at their own expense, the defense against the Third Party Claim in their own names or in the names of the Indemnified Parties, using counsel of their choice reasonably acceptable satisfactory to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that Parties so long as (i) the Indemnifying Party shall permit Parties notify the Indemnified Parties in writing within 20 days after the Indemnified Parties have given notice of the Third Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided Claim and that the fees and expenses of such counsel shall be borne by such Indemnifying Parties will indemnify the Indemnified Party and Parties to the extent provided under this Article VII, (ii) the Indemnifying Third Party shall promptly be entitled to assume the defense of such action Claim involves only to the extent the Indemnifying Party acknowledges its indemnity obligation money damages and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall does not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks seek an injunction or similar equitable relief against the Indemnified Party; relief, and (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists Indemnifying Parties conduct the defense of a conflict of interest between the Indemnifying Party Third party Claim actively and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimdiligently. Any Indemnified Party Parties shall have the right to employ separate counsel in any such action or claim and Third Party Claim and/or to participate in the defense thereof, but in each case at their own expense. The party or parties conducting the fees defense of any Third Party Claim shall keep the other parties apprised of all significant developments with respect thereto and expenses of such counsel shall not be at enter into any settlement, compromise or consent to judgment that imposes non-monetary obligations on the expense Indemnified Parties with respect to such Third Party Claim without the prior written consent of the Indemnifying Party unless other parties hereto, such consent not to be unreasonably withheld.
(xc) In the Indemnifying Party shall have failedevent any of the conditions in Section 7.3(b) above is or becomes unsatisfied, within a reasonable time after having been notified by however, (i) the Indemnified Party of the existence of such claim as provided in the preceding sentencemay defend against, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available consent to the Indemnified Party which are not available to the Indemnifying Party, entry of any judgment or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is with respect to, the Third Party Claim in any manner it reasonably may deem appropriate (and the Indemnified Party need not entirely indemnifiable by the consult with, or obtain any consent from, any Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof in connection therewith); provided that if the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to agree that the Indemnifying Party and/or its counsel, such employees of would not indemnify the Indemnified Party as may pursuant to Section 7.3(b), then the Indemnified Party shall not consent to the entry of any judgment or enter into any settlement with respect to, the Third Party Claim in any manner without obtaining the written consent of each Indemnifying Party in connection therewith which consent shall not be reasonably necessary unreasonably withheld or delayed, (ii) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the preparation costs of defending against the defense of Third Party Claim (including attorneys’ fees and expenses), and (iii) subject to clause (i), the Indemnifying Parties will remain responsible for any such claim or for testimony as witnesses in any proceeding Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to such claimor resulting from the Third Party Claim to the fullest extent provided in this Article VII.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (C-Cor Inc)
Third Party Claims. If a claim such Claim relates to any action, suit, proceeding or demand instituted against the Indemnified Party by a third party is made against any Indemnified Party(a "THIRD PARTY CLAIM"), and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party shall be entitled to participate in the defense of such claims; provided, that Third Party Claim after receipt of notice of such claim from the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced therebyIndemnified Party. The Indemnifying Party shall have Within thirty (30) days after receipt of such notice to of a particular matter from the Indemnified Party, the Indemnifying Party may assume the conduct and controldefense of such Third Party Claim, through counsel reasonably acceptable to the Indemnified Party at the expense of in which case the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; providedhave the authority to negotiate, that compromise and settle such Third Party Claim, if and only if the following conditions are satisfied:
(i) the Indemnifying Party shall permit have confirmed in writing that it is obligated hereunder to indemnify the Indemnified Party with respect to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses full amount of such counsel shall be borne by such Indemnified Third Party and Claim; and
(ii) the Indemnifying named parties to such Third Party shall promptly be entitled to assume the defense of such action only to the extent Claim include both the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) , and the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which that are not different from or additional to those available to the Indemnifying Party, or available to . If the Indemnifying Party assumes the assertion defense of which would a Third Party Claim, (i) the Indemnified Party shall be adverse entitled to employ its own counsel and to participate in the interests defense of any Third Party Claim, but the Indemnified Party shall bear and shall be solely responsible for its own costs and expenses in connection with such representation, and (ii) the Indemnifying Party shall be entitled to compromise or settle such Third Party Claim, provided, however, that any compromise or settlement shall be made only with the written consent of the Indemnified Party. So long as If the Indemnifying Party is reasonably contesting any such claim in good faith, does not assume the Indemnified Party shall not pay or settle any defense of such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or defend, compromise and settle any such claim, provided PROVIDED, HOWEVER, that in such event it shall waive any right compromise or settlement that may reasonably be expected to indemnity therefor by the Indemnifying Party for such claim unless the result in, or requires, any indemnification from an Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except be made only with the written consent of the Indemnified Indemnifying Party, enter into any settlement that is which consent shall not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimunreasonably withheld.
Appears in 2 contracts
Samples: Stock Purchase Agreement (High Voltage Engineering Corp), Stock Purchase Agreement (High Voltage Engineering Corp)
Third Party Claims. If (a) In the event that any Buyer Indemnified Party desires to make a claim by against the Escrow Deposit or any Seller Indemnified Party desires to make a third party is claim against the Buyer, in each case in connection with any Proceeding, demand or other claim of a Third Party at any time instituted against or made against any Indemnified Party, and if upon such Indemnified Party intends to for which such Indemnified Party may seek indemnity with respect thereto under Section 15indemnification hereunder (a “Third Party Claim”), such Indemnified Party shall promptly notify the Indemnifying Party applicable Indemnification Control Person of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Third Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof Claim and the Indemnified Party Party’s claim for indemnification with respect thereto.
(b) The Indemnification Control Person shall cooperate with it in connection therewith; provided, that (i) have the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled right to assume the defense of such action only any Third Party Claim with counsel of its choice by providing written notice to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s Indemnification Control Person has received notice of a claim such Third Party Claim; provided, however, that, except as otherwise provided in respect of indemnity hereunder that it elects claims subject to undertake the defense thereofSection 6.03(e), the Indemnified Party shall have not be required to permit such an assumption of the right defense of any Third Party Claim that, if not first paid, discharged or otherwise complied with, would reasonably be expected to contest, settle result in a Material Adverse Effect on the Buyer or compromise the claim but Seller (as the case may be).
(c) The assumption of the defense of any Third Party Claim by the Indemnification Control Person shall not thereby waive constitute an admission of responsibility to indemnify the Indemnified Party or in any right manner impair or restrict the Indemnifying Party’s rights to indemnity therefor pursuant later be reimbursed its costs and expenses if indemnification under this Agreement with respect to this Agreementsuch Proceeding, demand or other claim was not required. The Indemnifying Party Indemnification Control Person shall not, except with in the defense of such claim, consent to the entry of any judgment (other than a judgment of dismissal on the merits without costs) or enter into any settlement without the written consent of the Indemnified Party, enter into any settlement which consent shall not be unreasonably withheld, delayed or conditioned, except that no such consent shall be required if the sole relief provided is not entirely indemnifiable monetary damages that are reimbursed to the Indemnified Party in full as Losses (subject to, with respect to claims by the Indemnifying Buyer Indemnified Parties, the remaining Deductible Amount, if any, that will be paid by the Buyer Indemnified Party, and subject to the other indemnification limitations set forth in this Agreement).
(d) If the Indemnification Control Person assumes the defense of a Third Party Claim, the Indemnified Party shall be entitled to participate in the defense of such claim, but solely by observation and comment to the Indemnification Control Person, and any counsel selected by the Indemnified Party shall not appear on its behalf in any Proceeding arising hereunder. The Indemnified Party shall bear the fees and expenses of any additional counsel retained by it to participate in its defense.
(e) If the Indemnification Control Person does not assume the defense of a Third Party Claim after receipt of notice of such Third Party Claim from the Indemnified Party pursuant to this Agreement Sections 9.03(a) and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and 9.03(b), the Indemnified Party may defend against such claim in such manner as it reasonably deems appropriate. The Indemnified Party may not settle such claim without the written consent of the Indemnification Control Person, which consent shall not be unreasonably withheld, delayed or conditioned.
(f) The Buyer Indemnified Parties and the Seller Indemnified Parties shall cooperate in good faith and in all respects with the Indemnification Control Person and its representatives (including its counsel) in the investigation, negotiation, settlement, trial and/or defense of any Third Party Claim (and any appeal arising therefrom). The Parties shall cooperate with each other in all reasonable respects in connection with the defense any notifications to and information requests of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense insurers. No individual representative of any such claim Indemnifying Party, or any Indemnifying Party’s Affiliates, shall be personally liable for testimony any Loss or Losses under this Agreement, except as witnesses in any proceeding relating specifically agreed to such claimby said individual representative.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Veeco Instruments Inc), Stock Purchase Agreement (Bruker Corp)
Third Party Claims. If a claim by a third party any demand, claim, action or cause of action, suit, proceeding or investigation (collectively, the “Claim”) is made brought against any an Indemnified Party, and if such Party for which the Indemnified Party intends to seek indemnity with respect thereto under Section 15from the other party hereto (the “Indemnifying Party”), then the Indemnified Party within twenty-one (21) days after such Indemnified Party's receipt of the Claim, shall notify the Indemnifying Party pursuant to Paragraph “C” of Article “24” of this Agreement which notice shall contain a reasonably thorough description of the nature and amount of the Claim (the “Claim Notice”). The Indemnifying Party shall promptly have the option to undertake, conduct and control the defense of such claim or demand. Such option to undertake, conduct and control the defense of such claim or demand shall be exercised by notifying the Indemnified Party within ten (10) days after receipt of the Claim Notice pursuant to Paragraph “C” of Article “24” of this Agreement (such notice to control the defense is hereinafter referred to as the “Defense Notice”). The failure of the Indemnified Party to notify the Indemnifying Party of such claims; provided, that the failure to so notify Claim shall not relieve the Indemnifying Party from any liability which the Indemnifying Party may have pursuant to this Article “21” of its obligations hereunder, this Agreement except to the extent that such failure to notify the Indemnifying Party is actually and materially prejudiced therebyprejudices the Indemnifying Party. The Indemnified Party shall use all reasonable efforts to assist the Indemnifying Party shall have thirty (30) days after receipt in the vigorous defense of such notice to assume the conduct Claim. All costs and control, through counsel reasonably acceptable to expenses incurred by the Indemnified Party at in defending the expense of Claim shall be paid by the Indemnifying Party. If, of the settlement or defense thereof and however, the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party desires to participate in any such settlement defense or defense through counsel chosen by such Indemnified Partysettlement, provided that the fees it may do so at its sole cost and expenses of such counsel shall be borne by such Indemnified Party and expense (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, it being understood that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimdefense). Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the The Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlementClaim. If the Indemnifying Party does not notify elect to control the defense of the Claim, within the aforesaid ten (10) day period by proper notice pursuant to Paragraph “C” of Article “24” of this Agreement, then the Indemnified Party shall be entitled to undertake, conduct and control the defense of the Claim (a failure by the Indemnifying Party to send the Defense Notice to the Indemnified Party within thirty the aforesaid ten (3010) days after day period by proper notice pursuant to Paragraph “C” of Article “24” of this Agreement shall be deemed to be an election by the receipt Indemnifying Party not to control the defense of the Indemnified Party’s notice of a claim of indemnity hereunder Claim); provided, however, that the Indemnifying Party shall be entitled, if it elects so desires, to undertake the defense thereofparticipate therein (it being understood that in such circumstances, the Indemnified Party shall have be entitled to control the right defense). Regardless of which party has undertaken to contestdefend any claim, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall notmay, except with without the prior written consent of the Indemnified Party, enter into settle, compromise or offer to settle or compromise any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or demand; provided however, that if any settlement would result in the imposition of a consent to entry order, injunction or decree which would restrict the future activity or conduct of any judgment. The Indemnifying Party and the Indemnified Party, the consent of the Indemnified Party shall cooperate with each other in all reasonable respects in connection with be a condition to any such settlement. Notwithstanding the defense foregoing provisions of any claimthis Article “21” of this Agreement, including making available records relating to such claim and furnishing, without expense as a condition to the Indemnifying Party and/or either having the right to defend the Claim, or having control over settlement as indicated in this Article “21” of this Agreement, the Indemnifying Party shall execute an agreement, in the form annexed hereto and made a part hereof as Exhibit “H”, acknowledging its counselliability for indemnification pursuant to this Article “21” of this Agreement. Whether the Indemnifying Party shall control and assume the defense of the Claim or only participate in the defense or settlement of the Claim, such employees of the Indemnified Party as may be reasonably necessary for shall give the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating Indemnifying Party and its counsel access, during normal business hours, to such claimall relevant business records and other documents, and shall permit them to consult with its employees and counsel.
Appears in 2 contracts
Samples: Exclusive Distribution Agreement (Scantek Medical Inc), Distribution Agreement (Scantek Medical Inc)
Third Party Claims. If a claim by a third party is made against any Indemnified Party, and if such Indemnified Party party intends to seek indemnity with respect thereto under Section 15this Article IX, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Partyits choosing, of the settlement or defense thereof and the Indemnified Party shall cooperate fully with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s 's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreementclaim. The Indemnifying Party shall not, except with the consent of the Indemnified PartyParty (which consent shall not be unreasonably withheld, delayed or conditioned), enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentsettlement. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Tetra Tech Inc), Asset Purchase Agreement (Foster Wheeler LTD)
Third Party Claims. If a claim by a third party is made commences any action or makes any demand against any a Seller Indemnified Party, and if such a Buyer Indemnified Party, or a SFI Indemnified Party intends (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to seek indemnity with respect thereto indemnification under Section 15this Agreement, such Indemnified Party shall will promptly notify the other party (“Indemnifying Party Party”) in writing of such claimsaction or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure to so notify shall not relieve limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party of its obligations hereunder, except to the extent that such failure materially prejudices the Indemnifying Party is actually and materially prejudiced therebyParty’s ability to defend the action. The Indemnifying Party shall have thirty (30) days after receipt may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such notice action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the conduct and control, through defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party at that has assumed the expense defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party, of Party will not be unreasonably withheld in the event the settlement or defense thereof and adjustment involves only the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) payment of money damages by the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) in the Indemnifying Party shall promptly be entitled to assume the defense case of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if (i) the claim for indemnification relates to settlement or arises in connection with any criminal proceeding, action, indictment, allegation adjustment involves performance or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition admission by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim.
Appears in 2 contracts
Samples: Purchase Agreement (New Residential Investment Corp.), Purchase Agreement (Springleaf Finance Corp)
Third Party Claims. (a) If a any legal or administrative proceedings shall be instituted or any claim is asserted by a any third party in respect of which one of the Indemnified Parties may be entitled to indemnity hereunder, one or more of the Indemnified Parties will give the party or parties from which such indemnification is made against sought (the “Indemnifying Parties”), written notice thereof and copies of any Indemnified Partydocuments in its possession that relate to such third-party claim, and if such Indemnified Party intends action or proceeding. A delay in giving notice to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify Parties shall not only relieve the Indemnifying Party Parties of its obligations hereunder, except liability to the extent the Indemnifying Parties suffer actual prejudice because of the delay by the Indemnified Parties.
(b) The Indemnifying Parties shall have the right, at their option and expense, to participate in the defense of such a proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control shall at all times rest with the Indemnified Parties, unless the proceeding or claim involves only money damages and the Indemnifying Parties: (i) irrevocably acknowledge in writing responsibility for and agree to indemnify the Indemnified Parties for such damages; and (ii) furnish satisfactory evidence of their financial ability to indemnify the Indemnified Parties, in which case the Indemnifying Parties may assume such control through counsel of their choice and at their expense ((i) and (ii), the “Defense Conditions”); provided that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party Indemnified Parties shall have thirty (30) days after receipt the right, at its option and expense, to participate in the defense of such notice to assume a proceeding or claim
(c) Notwithstanding the conduct and controlforegoing, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that if: (i) the Indemnifying Party shall permit Parties fail to fulfill the Indemnified Party to participate in such settlement Defense Conditions; or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party Indemnified Parties shall promptly be entitled to assume in good faith determine that: (x) the conduct of the defense of any claim subject to indemnification hereunder or any proposed settlement of any such action only to the extent claim by the Indemnifying Party acknowledges Parties could reasonably be expected to affect adversely any Indemnified Parties’ reputation, liability or its indemnity ability to conduct its business or that imposes, or may impose, any liability, obligation and assumes and holds such or restriction upon any of the Indemnified Party harmless from and against Parties, including, without limitation, any Tax liability, without the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control prior written consent of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (ivy) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed proceeding could result in a criminal proceeding, allegation or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, investigation against it; or (z) the named parties Indemnified Parties may have available to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be it one or more legal defenses available to the Indemnified Party which or counterclaims that are not inconsistent with one or more of those that could reasonably be available to the Indemnifying Party, or available Parties in respect to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoinglitigation relating thereto, the Indemnified Party shall have the right to pay assume control over the defense, settlement, negotiations or settle litigation relating to any such claim, provided that in such event it shall waive any right to indemnity therefor by claim at the sole cost of the Indemnifying Party for Parties; provided, that the Indemnified Parties shall not settle such claim unless or litigation without the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the prior written consent of the Indemnified PartyIndemnifying Parties, enter into any settlement that is such consent not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person be unreasonably withheld or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentdelayed. The Indemnifying Party and the Indemnified Party shall cooperate with parties agree to provide each other in all with reasonable respects cooperation in connection with the defense of any claimdefense, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense negotiation or settlement of any such claim proceeding or for testimony as witnesses in any proceeding relating to such claim.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Installed Building Products, Inc.)
Third Party Claims. If a claim by a third party a (“Third Party Claim”) is made against any a Seller Indemnified Party or a Buyer Indemnified Party (an “Indemnified Party”), and if such Indemnified Party party intends to seek indemnity with respect thereto under Section 159.1 or Section 9.2, such Indemnified Party shall promptly notify furnish written notice to the Indemnifying Party indemnifying party (the “Indemnitor”) of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party Indemnitor shall have thirty (30) days after receipt of such notice to assume the conduct undertake, conduct, and control, control (through counsel reasonably acceptable of its own choosing and at its own expense) the defense thereof. If the Indemnitor elects to undertake the Indemnified defense of any Third Party at the expense of the Indemnifying PartyClaim, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; providedprovided that the Indemnitor shall not settle any such Third Party Claim without the prior written consent of the Indemnified Party (which consent will not be unreasonably withheld or delayed) unless the relief consists solely of money damages and includes a provision whereby the plaintiff or claimant in the matter releases Buyer Indemnified Parties or Seller Indemnified Parties, that (i) the Indemnifying Party as applicable, from all liability with respect thereto. The Indemnitor shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified PartyParty (however, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party except if (i) the claim for indemnification relates to Indemnified Party shall have determined reasonably and in good faith that an actual or arises in connection with any criminal proceeding, action, indictment, allegation potential conflict of interest makes representation by the same counsel or investigation; the counsel selected by the Indemnitor inappropriate or (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) Indemnitor shall have authorized the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate legal counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of Indemnitor’s expense). So long as the Indemnifying Party unless Indemnitor, at Indemnitor’s cost and expense, (xi) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume has undertaken the defense of such claim, (yii) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, by appropriate proceedings, and (iii) has taken such action (including the posting of a bond, deposit, or other security) as may be necessary to prevent any action to foreclose a lien against or attachment of the property of the Indemnified Party for payment of such claim, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder hereunder, the Indemnitor does not notify the Indemnified Party that it elects (at Indemnitor’s cost and expense) to undertake the defense thereofthereof or gives such notice and thereafter fails to contest such claim in good faith or to prevent action to foreclose a lien against or attachment of the Indemnified Party’s property as contemplated above, the Indemnified Party shall have the right to contest, contest but shall not settle or and/or compromise the claim but and, to the extent the actions taken by the Indemnified Party in settling or compromising such claim are reasonable and in good faith, the Indemnified Party shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Gastar Exploration LTD), Purchase and Sale Agreement (Gastar Exploration LTD)
Third Party Claims. If a claim by a third party is made against any Indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have (a) Within thirty (30) days after receipt of such notice to assume an Indemnity Claim Notice, the conduct and control, through counsel reasonably acceptable Indemnifying Party shall furnish to the Indemnified Party at a Response Notice in which the expense Indemnifying Party shall with respect to a Third Party Claim (i) agree that it is responsible to defend and indemnify any liability arising under such Third Party Claim (a “Defense Notice”), or (ii) disagree that it is responsible to defend and indemnify any liability arising under such Third Party Claim. If the Indemnifying Party gives a Defense Notice, it will undertake the defense of the Indemnifying Claim by representatives of its own choosing reasonably satisfactory to the Indemnified Party. Indemnified Party shall have the right at its own expense to participate in any such defense with representatives of its own choosing.
(b) Notwithstanding anything contained herein to the contrary, of the settlement or defense thereof and the Indemnified Party shall cooperate be entitled to participate, with it counsel of its choosing, in connection therewith; providedthe defense, that settlement, adjustment or compromise of (i) but the Indemnifying Party shall permit the Indemnified Party nevertheless be required to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained all Damages incurred by the Indemnified Party if in connection with such defense, settlement or compromise, as required by this Article XVIII) any Third Party Claim (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim that seeks an order, injunction or other equitable relief against the Indemnified PartyParty or any of its Affiliates; (ii) for which the Indemnified Party would otherwise be entitled to indemnification under this Article XVIII, and (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between which both the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that Party are named as parties and either the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party determines with advice of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which it that are not different from or additional to those available to the Indemnifying Partyother party or that a conflict of interest between such parties may exist in respect thereto, or available to the in which event Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the and Indemnified Party shall not pay or settle any reasonably cooperate in such claim. Notwithstanding the foregoingdefense, but the Indemnified Party shall have the right final control over any injunctive relief brought against it, and any different or additional legal defense specifically available only to pay or settle any such claimit, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the and Indemnifying Party shall have consented final control over all other aspects of the Third Party Claim.
(c) Each Party shall make available to the other Party and its attorneys and accountants, at all reasonable times during normal business hours, all books, records, and other documents in its possession relating to such payment or settlementThird Party Claim. If The party contesting any such Third Party Claim shall be furnished all reasonable assistance in connection therewith by the Indemnifying Party does not notify the Indemnified Party within thirty other party.
(30d) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects Subject to undertake the defense thereofSection 8.2 hereto, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of without the Indemnified Party’s written consent, enter into settle or compromise any settlement that is not entirely indemnifiable by the Indemnifying Third Party pursuant Claim or consent to this Agreement and entry of any judgment which does not include as an unconditional term thereof the giving by the person claimant or persons asserting such claim the plaintiff to all Indemnified Parties of Party an unconditional release from all liability with in respect to of such claim or consent to entry of any judgment. The Third Party Claim.
(e) If the Indemnifying Party and fails to timely give a Defense Notice or thereafter fails to timely undertake the defense of, or settle or pay, any such Third-Party Claim, then the Indemnified Party shall cooperate with each other in may take any and all reasonable respects in connection with the defense necessary action to dispose of any claimsuch Third-Party Claim, including making available records relating to such claim and furnishingincluding, without expense to limitation, the Indemnifying Party and/or settlement or full payment thereof upon such terms as it shall deem appropriate, in its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimsole discretion.
Appears in 2 contracts
Samples: Master Lease Agreement (Kindred Healthcare, Inc), Master Lease Agreement (Kindred Healthcare, Inc)
Third Party Claims. If a claim by a third party is made against any Indemnified Party, and if such (i) Any Indemnified Party intends seeking indemnification pursuant to seek indemnity with this ARTICLE 10 in respect thereto under Section 15of any claim, such Indemnified demand or other Action asserted by any Person who is not a Party or an Affiliate thereof (a “Third-Party Claim”) shall promptly notify give the Indemnifying Party from whom indemnification with respect to such Third-Party Claim is sought prompt written notice of such claimsThird-Party Claim; provided, however, that no delay on the failure to so notify part of the Indemnified Party in notifying the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except from any obligation hereunder unless (and then solely to the extent that that) the Indemnifying Party is actually and materially prejudiced thereby. Such written notice shall describe the facts and circumstances giving rise to such Third-Party Claim, the basis upon which indemnity is being sought, the amount or estimated amount of the Losses relating to such Third-Party Claim, if known or reasonably ascertainable at the time such claim is made (or if not then reasonably ascertainable, the maximum amount of such Losses reasonably estimated by the Indemnified Party), and the method of computation of such Losses, all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which the Indemnified Party is entitled to indemnification hereunder.
(ii) The Indemnifying Party shall have the right to control the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party by notifying the Indemnified Party in writing within thirty (30) days after receipt of such notice to assume of the conduct and control, through counsel reasonably acceptable to Third-Party Claim from the Indemnified Party that the Indemnifying Party is assuming the defense against such Third-Party Claim. In the event that the Indemnifying Party does deliver notice as prescribed in this Section 10.5(b)(ii) and thereby properly elects to conduct the defense of the subject Third-Party Claim: (A) the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as the Indemnifying Party may reasonably request; and (B) the Indemnifying Party shall not be obligated to post a bond or provide other security required in connection with such Third-Party Claim. In the event the Indemnifying Party fails to give notice of its election to conduct the defense of a Third-Party Claim within the time and as prescribed in this Section 10.5(b)(ii) or otherwise may not assume the defense of the Third-Party Claim pursuant to this Section 10.5(b)(ii), then the Indemnified Party shall have the right to control such defense. The party controlling the defense of any Third-Party Claim shall deliver, or cause to be delivered, to the other parties copies of all correspondence, pleadings, motions, briefs, appeals or other written statements relating to or submitted in connection with the defense of the Third-Party Claim, and timely notices of, and the right to participate in (as an observer) any hearing or other court proceeding relating to the Third-Party Claim.
(iii) So long as the Indemnifying Party provides proper notice under Section 10.5(b)(ii): (A) the Indemnifying Party may conduct the defense of the Third-Party Claim in accordance with Section 10.5(b)(ii); (B) the Indemnified Party may retain separate co-counsel at its sole cost and expense (which, for the avoidance of doubt, shall include all legal fees and similar expenses incurred in the defense of such Third-Party Claim) and participate in the defense of the Third-Party Claim; provided, however, that the Indemnified Party will be entitled to participate in any such defense with separate counsel at the expense of the Indemnifying Party if: (I) so requested by the Indemnifying Party to participate or (II) in the reasonable written opinion of counsel to the Indemnified Party, of the settlement or defense thereof and a conflict exists between the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) and the Indemnifying Party shall permit the Indemnified Party to participate in that would make such settlement or defense through counsel chosen by such Indemnified Partyseparate representation advisable; provided further, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, furtherhowever, that the Indemnifying Party shall not be entitled required to assume control of pay for more than one (1) such defense and shall pay the fees and expenses of counsel retained by the for all Indemnified Party if (i) the claim for indemnification relates to or arises Parties in connection with any criminal proceedingThird-Party Claim; and (C) the Indemnifying Party will not, actionwithout the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, indictmentconditioned or delayed), allegation consent to the entry of any judgment or investigationenter into any settlement with respect to the Third-Party Claim which: (1) does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto; (ii2) would result in (a) the claim seeks an imposition of a consent order, injunction or equitable relief against decree that would restrict the future activity or conduct of the Indemnified Party; , or (iiib) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists finding or admission of a conflict violation of interest between the Indemnifying Party and applicable Law by the Indemnified Party; or (iv3) imposes an injunction or other equitable relief upon petition by the Indemnified Party.
(iv) Notwithstanding the foregoing, if a settlement offer solely for money damages is made by the appropriate court rules that claimant in the applicable Third-Party Claim, and the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any notifies the Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense writing of the Indemnifying Party unless (x) Party’s willingness to accept the Indemnifying Party shall have failedsettlement offer and, within a reasonable time after having been notified subject to the applicable limitations of this ARTICLE 10, pay the amount called for by such offer, and the Indemnified Party declines to accept such offer, the Indemnified Party may continue to contest such Third-Party Claim, free of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing any participation by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion amount of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all ultimate liability with respect to such claim or consent to entry of any judgment. The Third-Party Claim that the Indemnifying Party and has an obligation to pay hereunder shall be limited to the amount of the settlement offer that the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating declined to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimaccept.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Hawkeye Systems, Inc.), Stock Purchase Agreement (Hawkeye Systems, Inc.)
Third Party Claims. If (a) With respect to third party claims or demands by third parties as to which the Indemnified Party may seek indemnification hereunder, whenever the Indemnified Party will have received notice that such a claim by a third party is made against any Indemnified Partyor demand has been asserted or threatened, and if such the Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall will promptly notify the Indemnifying Party of such claims; provided, claim or demand and of the facts within the Indemnified Party’s knowledge that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced therebyrelate thereto as promptly as practicable after receiving such notice. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall will then have the right to employ separate counsel in any such action or claim and to participate in the defense thereofdefend, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failedcontest, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay negotiate or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay claim or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by demand through counsel of its own selection solely at the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlementParty’s own cost and expense. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a timely proceed to defend, contest, or negotiate any such claim of indemnity hereunder that it elects to undertake the defense thereofor demand through counsel selected by it, the Indemnified Party shall have may engage counsel to do so, all at the right sole cost and expense of the Indemnifying Party. Notwithstanding the preceding sentence, the Indemnifying Party will not settle, compromise or offer to contest, settle or compromise any such claim or demand without the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the prior written consent of the Indemnified Party, enter into unless any such settlement that is not entirely indemnifiable by or compromise unconditionally releases the Indemnifying Indemnified Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to any such third party claim or consent to entry of any judgmentdemand. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation assumption of the defense of any such third party claim by the Indemnifying Party shall not be an acknowledgment of the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to such claim hereunder. If the Indemnified Party desires to participate in, but not control, any such defense it may do so at its sole cost and expense. If the Indemnifying Party gives notice to the Indemnified Party within fifteen (15) Business Days after the Indemnified Party has notified the Indemnifying Party that any such claim or for testimony demand has been made, that the Indemnifying Party elects to have the Indemnified Party defend or contest any such claim or demand, then the Indemnified Party will have the right to contest and/or settle any such claim or demand and seek indemnification pursuant to this Article X as witnesses in to an Damages; provided, however, that the Indemnified Party will not settle, compromise or offer to settle or compromise any proceeding relating such claim or demand without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld or delayed.
(b) In connection with the defense or settlement of any third party claim, the Indemnified and Indemnifying Parties shall provide access to the counsel, accountants and other representatives of such other Party during normal business hours and upon reasonable written notice to all reasonably relevant properties, personnel, books, tax records, Contracts, commitments and all other business records of such Party and will furnish to such claimother Party copies of all such documents as may reasonably be requested (certified if requested) and shall otherwise cooperate in determining the validity or defense of any such third party claim and in the defense or settlement thereof.
Appears in 2 contracts
Samples: Stock Purchase Agreement (World Surveillance Group Inc.), Stock Purchase Agreement (World Surveillance Group Inc.)
Third Party Claims. If In the event that a Company Indemnified Party or Purchaser Indemnified Party becomes aware of a Third-Party claim by a third party is made against any Indemnified Party, and if which such Indemnified Party intends believes may result in Damages for which such Indemnified Party would be entitled to seek indemnity indemnification pursuant to this Article 8 (a “Third-Party Claim”), the procedures to be followed with respect thereto under Section 15, to the defense or settlement of such Third-Party Claim shall be as follows:
8.4.1. Such Indemnified Party shall promptly notify the Indemnifying Party of Company (who shall receive such claims; providednotice, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that applicable, on behalf of all Additional Parties) or Purchaser, as the case may be (the “Indemnifying Party is Representative”), of such Third Party Claim. No delay in notifying such Indemnifying Party Representative of such Third-Party Claim in accordance with the terms of this Agreement shall affect an Indemnified Party’s rights, unless (and then only to the extent that) such Indemnifying Party Representative or Purchaser or any Additional Party, as the case may be, are actually and materially prejudiced thereby. The party against whom indemnification is sought under this Article 8 is referred to as the “Indemnifying Party”. Indemnifying Party shall have thirty (30) days after receipt Representative, at the sole expense of such notice to the Indemnifying Party, may assume the conduct and control, through defense thereof with counsel reasonably acceptable to the Indemnified Party by written notice to the Indemnified Party provided within 20 days of the Indemnifying Party’s receipt of the notice of claim. The Indemnified Party may participate in the defense of such claim that is defended by such Indemnifying Party Representative with co-counsel of its choice; provided, however, that the fees and expenses of the Indemnified Party’s counsel shall be paid by such Indemnified Party unless (i) such Indemnifying Party Representative has agreed in writing to pay such fees and expenses or (ii) a claim shall have been brought or asserted against the Indemnified Party as well as the Indemnifying Party, and the Indemnified Party shall have reasonably determined that there are one or more factual or legal defenses available to it that are in conflict with those that are available to the Indemnifying Party, in which case such co-counsel shall be at the expense of the Indemnifying Party. Assuming the defense of such claim shall constitute an admission by the Indemnifying Party that such claim is a proper or valid claim for indemnification, but shall not constitute an admission by the Indemnifying Party, as to the amount of the Damages asserted in the Claim.
8.4.2. The Indemnifying Party Representative shall have full right to enter into any compromise or settlement or defense thereof and that is dispositive of the Indemnified Party shall cooperate with it in connection therewithmatter involved; provided, however, that (i) except for the Indemnifying settlement of a Third Party shall permit the Claim (A) that involves no obligation of any Indemnified Party to participate other than the payment of money for which indemnification in such settlement or defense through counsel chosen by such Indemnified Partyfull is provided hereunder, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (iiB) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood there exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; Party that cannot be waived or (ivC) upon petition by the Indemnified Partythat is related to Taxes, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel Representative shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise any Third Party Claim without the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the prior written consent of the Indemnified Party, enter into any settlement that is which shall not entirely indemnifiable by be unreasonably withheld or delayed; and (ii) the Indemnifying Party pursuant to this Agreement and does Representative may not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentjudgment or enter into any settlement in respect of a Third Party Claim that does not include an unconditional release of the Indemnified Party from all liability in respect of such Third Party Claim; provided further, that, if in the reasonable judgment of the Indemnified Party it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party Representative refuses to enter into such settlement or compromise, the Indemnified Party may enter into such settlement or compromise, but such settlement or compromise shall not be conclusive as to the existence or amount of the liability of Indemnifying Party or any Third Party.
8.4.3. If the Indemnifying Party elects not to compromise or defend such Third-Party Claim, fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such Third-Party Claim, the Indemnified Party may pay, compromise, defend such Third-Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third-Party Claim.
8.4.4. The Indemnifying Indemnified Party and the Indemnified Indemnifying Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to Third-Party Claim. The party controlling such claim and furnishing, without expense to defense shall keep the Indemnifying Party and/or its counsel, such employees other party advised of the Indemnified Party as may be reasonably necessary for the preparation status of such proceeding and the defense of any such claim or for testimony as witnesses thereof and shall consider in any proceeding relating to such claimgood faith recommendations made by the other party with respect thereto.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Odyssey Health, Inc.), Asset Purchase Agreement (Oragenics Inc)
Third Party Claims. If a claim by a The obligations and liabilities of an Indemnifying Party under this Article V with respect to Liabilities arising from claims of any third party is made against any Indemnified Partythat are subject to the indemnification provisions provided for in this Article V, but expressly excluding DMRC Litigation Matters and if such Indemnified Digimarc Litigation Matters, which shall be governed by Article X (“Third Party intends Claims”) shall be governed by and contingent upon the following additional terms and conditions:
(i) The Indemnitee at the time it gives a Notice of Claim to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify Third Party Claim shall not relieve advise the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party shall be permitted, at its option, to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice reasonably satisfactory to the Indemnitee if (A) it gives written notice of its intention to do so to the Indemnitee within twenty (20) days of its receipt of the Notice of Claim, (B) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (C) settlement of or an adverse judgment with respect to the Third Party Claim is actually not, in the good faith judgment of the Indemnitee, likely to establish a precedential custom or practice materially adverse to the continuing business interests or the reputation of the Indemnitee, and materially prejudiced thereby. The (D) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently.
(ii) In the event the Indemnifying Party exercises its right to undertake the defense against any such Third Party Claim in accordance with this Section 5.04, the Indemnitee shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses and Information in its possession or under its control relating thereto as is reasonably requested by the Indemnifying Party; provided, however, that if the defendants in any Action shall include both the Indemnitee and the Indemnifying Party and such Indemnitee shall have thirty (30) days after receipt concluded in good faith that counsel selected by the Indemnifying Party has a conflict of interest because of the availability of different or additional defenses to such notice Indemnitee, such Indemnitee shall have the right to assume the conduct and control, through select separate counsel reasonably acceptable to the Indemnified Indemnifying Party to participate in the defense of such Action on its behalf, at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the such Indemnifying Party shall not not, in connection with any one such Action or separate but substantially similar or related Actions, be entitled to assume control of such defense and shall pay liable for the reasonable fees and expenses of counsel retained by the Indemnified Party if more than one separate firm of attorneys (i) the claim for indemnification relates in addition to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; local counsel).
(iii) Notwithstanding the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between foregoing, the Indemnitee, during the period the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing determining whether to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, elect to assume the defense of a matter covered by this Section 5.04(b), may take such claimreasonable actions, (y) the employment of such counsel has been specifically authorized in writing by at the Indemnifying Party’s expense, or (z) the named parties as it deems necessary to preserve any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available all rights with respect to the Indemnified Party which are not available to the Indemnifying Partydefense of such matter, or available to the Indemnifying Party the assertion of which would be adverse to the interests without such actions being construed as a waiver of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right Indemnitee’s rights to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor and indemnification pursuant to this Agreement. The Indemnifying In the event the Indemnitee is, directly or indirectly, conducting the defense against any such Third Party shall notClaim, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party (A) shall cooperate with each other the Indemnitee in such defense and make available to it all reasonable respects such witnesses and Information in connection with its possession or under its control relating thereto as is reasonably requested by the Indemnitee and (B) may participate by its own counsel and at its own expense in the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Third Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimClaim.
Appears in 2 contracts
Samples: Separation Agreement (DMRC Corp), Separation Agreement (DMRC Corp)
Third Party Claims. (a) If the claim specified in the Claim Notice relates to a third-party claim, the indemnifying party shall have 15 days after its receipt of the Claim Notice to notify the indemnified party whether the indemnifying party agrees that the claim by a third party is made against any Indemnified Partysubject to indemnification pursuant to Section 9.1 or 9.2, and whether the indemnifying party elects to defend such third-party claim at its own expense. However, if such Indemnified Party intends the indemnified party reasonably concludes that there are defenses available to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, it that the failure are different or additional to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except those available to the extent that indemnifying party, or if the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense interests of the Indemnifying Party, indemnified party may be reasonably deemed to conflict with those of the settlement or defense thereof and indemnifying party, then the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party indemnified party shall have the right to employ select separate counsel in any such action or claim and to participate in the defense thereof, but the fees assume and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume control the defense of such claim, (y) demand or action, with the employment reasonable fees, expenses and disbursements of such counsel has been specifically authorized to be reimbursed by the indemnifying party as incurred (it being the agreement between the Parties that the indemnified party may retain or use multiple lawyers or law firms but only if and to the extent the discrete tasks performed by each do not unnecessarily replicate the task of another). If the claim relates to a third-party claim that the indemnifying party elects to defend, then the indemnified party shall reasonably cooperate with such defense. The indemnified party shall, however, regardless, be entitled to participate in the defense or settlement of such a third-party claim through its own counsel and at its own expense and shall be entitled to approve or disapprove any proposed settlement that would impose a duty or obligation on the indemnified party. If the indemnifying party does not timely elect to defend a third-party claim, or if the indemnifying party fails to conduct such defense with reasonable diligence, then the indemnified party may conduct the defense of, or settle, such claim at the risk and expense of the indemnifying party.
(b) If an indemnifying party assumes the defense of such a claim, (i) the indemnifying party must acknowledge in writing by to the Indemnifying Partyindemnified party that the damages that may be assessed against the indemnified party in connection with the claim underlying such Claim Notice constitute damages for which the indemnified party shall be indemnified pursuant to Section 9.1 or 9.2, or as applicable, (zii) the named parties indemnifying party agrees to any vigorously defend against the claim underlying such action Claim Notice at the indemnifying party’s sole cost, (including any impleaded partiesiii) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party indemnified party shall have the right to pay or settle any consult with the indemnifying party and the indemnifying party shall facilitate such claimconsultation, provided that in such event it shall waive any right to indemnity therefor (iv) upon reasonable request by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereofindemnified party, the Indemnified Party indemnifying party shall have provide the notice, copies, access and right of consultation provided for herein with respect to contest, settle or compromise the any claim but shall not thereby waive any right to indemnity therefor for indemnification pursuant to this Agreement. The Indemnifying Party , and (v) the indemnifying party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all have no liability with respect to such claim any compromise or settlement thereof effected by the indemnified party without its consent to entry of any judgment. The Indemnifying Party and the Indemnified Party (which consent shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may not be reasonably necessary for the preparation of the defense of any such claim unreasonably withheld or for testimony as witnesses in any proceeding relating to such claimdelayed).
Appears in 2 contracts
Samples: Registration Rights Agreement (Walker Reid S), Registration Rights Agreement (SD Co Inc)
Third Party Claims. If a any Buyer Indemnitee or Seller Indemnitee (the “Indemnified Party”) receives written notice of the commencement of any Action or the assertion of any claim by a third party is made against or the imposition of any Indemnified Partypenalty or assessment for which indemnity may be sought under Section 9.02 or Section 9.03 (a “Third Party Claim”), and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15pursuant to this Article IX, such the Indemnified Party shall promptly notify (but no later than 30 days of receiving such notice) provide the other party from whom indemnity may be sought under Section 9.02 or Section 9.03 (the “Indemnifying Party Party”) with written notice of such claims; providedThird Party Claim, that stating the failure nature, the basis, the amount thereof (to so notify the extent known or estimated, which amount shall not be conclusive of the final amount of such Third Party Claim), the method of computation thereof (to the extent known or estimated), any other remedy sought thereunder, any relevant time constraints relating thereto, and, to the extent practicable and permitted by applicable Law, any other material details pertaining thereto, along with copies of the substantive documents evidencing such Third Party Claim and the basis for indemnification sought. Failure of the Indemnified Party to give such notice will not relieve the Indemnifying Party of from its indemnification obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced therebythereby through the forfeiture of substantial rights or defenses. The Indemnifying Party shall will have thirty fifteen (3015) days after from receipt of any such notice of a Third Party Claim to assume the conduct and control, through counsel reasonably acceptable give written notice to the Indemnified Party at whether it is assuming and controlling the expense defense, appeal or settlement proceedings thereof with counsel of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith’s choice; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Partyhowever, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume or maintain control of such the defense of any Third Party Claim, and shall pay the fees and expenses of counsel retained by the Indemnified Party Party, if (iA) the claim for indemnification Third Party Claim relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation; , (iiB) the claim Third Party Claim seeks an injunction non-monetary, injunctive or equitable relief against the Indemnified PartyParty or any of its Affiliates, or (C) the amount in dispute is reasonably likely to be covered, in whole or primarily by, or reduce the retention under, the R&W Insurance Policy or is otherwise reasonably likely to exceed the maximum amount for which the Indemnifying Party can then be liable pursuant to this Article IX. So long as the Indemnifying Party has assumed the defense, appeal or settlement proceedings of the Third Party Claim in accordance herewith, (i) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in (but not control) the defense, appeal and settlement proceedings of the Third Party Claim; provided that if the Indemnifying Party assumes control of such defense and (iiix) the Indemnified Party has been advised by counsel in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; Party have an actual conflict with respect to such action, suit, proceeding or claim or (ivy) upon petition if there are material legal defenses available to an Indemnified Party that are different from or in addition to those available to the Indemnifying Party, the reasonable fees and expenses of counsel to the Indemnified Party solely in connection with such action, suit, proceeding or claim shall be considered “Losses” for purposes of this Agreement; provided, however, that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one counsel per jurisdiction for all Indemnified Parties (it being understood that in the case of claims regarding jurisdictions other than the United States of America, the Indemnified Party shall be permitted to engage both United States counsel and one counsel in each relevant foreign jurisdiction), (ii) the Indemnified Party will not admit any liability or consent to the entry of any judgment or enter into any settlement agreement, compromise or discharge with respect to the Third Party Claim without the prior written consent of the Indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed) and (iii) the Indemnifying Party will not admit to any wrongdoing by the Indemnified Party, the appropriate court rules that the . The Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel settle, compromise or approve the entry of any judgment in respect of any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of Third Party Claim controlled by the Indemnifying Party unless to which settlement, compromise or judgment the Indemnified Party consents in writing (xsuch consent not to be unreasonably withheld, conditioned or delayed), except that no such consent shall be required if (1) such settlement, compromise or judgment does not involve any injunctive or equitable relief or finding or admission of any violation of Law or admission of any wrongdoing by any Indemnified Party, (2) the Indemnifying Party shall have failed(x) pay or cause to be paid all amounts in such settlement, within compromise or judgment and (y) not encumber any of the assets of any Indemnified Party or agree to any term, restriction or condition that would apply to or adversely affect any Indemnified Party or the conduct of any Indemnified Party’s business, (3) the terms of such settlement or compromise, settlement or judgment provide for a reasonable time after having been notified by complete and unqualified release of the claims that are the subject of such Third Party Claim in favor of the Indemnified Party and (4) the insurer of the existence of such claim as provided in the preceding sentence, R&W Insurance Policy is not entitled to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties consent to any such action (including settlement, compromise or judgment under the terms thereof, or such consent shall have been obtained. The parties will act in good faith in responding to, defending against, settling or otherwise dealing with Third Party Claims. The parties will also reasonably cooperate in any impleaded parties) include both such Indemnified Party and defense, appeal or settlement proceedings. Whether or not the Indemnifying Party and such Indemnified has assumed the defense, appeal or settlement proceedings with respect to a Third Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faithClaim, the Indemnified Party shall will not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by or approve the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, judgment without expense to the Indemnifying Party and/or its counselParty’s prior written consent (such consent not to be unreasonably withheld, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim conditioned or for testimony as witnesses in any proceeding relating to such claimdelayed).
Appears in 2 contracts
Samples: Security and Asset Purchase Agreement (Willis Towers Watson PLC), Security and Asset Purchase Agreement (Arthur J. Gallagher & Co.)
Third Party Claims. (a) If a claim by a third party is made against any Indemnified Party, and if Party receives notice of the assertion or commencement of any Legal Proceeding made or brought by any Person who is not an Indemnified Party (a “Third Party Claim”) against such Indemnified Party intends to seek indemnity with respect thereto to which the Indemnifying Party is obligated to provide indemnification under Section 15this Agreement, such the Indemnified Party shall promptly notify give the Indemnifying Party of such claims; provided, that the prompt written notice thereof. The failure to so notify give such prompt written notice shall not not, however, relieve the Indemnifying Party of its obligations hereunderindemnification obligations, except and only to the extent that the Indemnifying Party is actually and materially prejudiced thereby. Such notice by the Indemnified Party shall describe the Third Party Claim in reasonable detail, shall include copies of material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have thirty (30) days after receipt of such the right to participate in, or by giving written notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent any Third Party Claim at the Indemnifying Party acknowledges its indemnity obligation Party’s expense and assumes and holds such Indemnified Party harmless from and against by the full amount of any Loss resulting therefromIndemnifying Party’s own counsel; provided, further, provided that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, any Third Party Claim (yi) that asserts criminal liability or in which any remedy other than the employment payment of such counsel has been specifically authorized in writing by monetary damages is sought; (ii) that involves a claim with respect to which the Indemnifying Party, or (z) interests of the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and are, or would reasonably be expected to be, in conflict with one another; or (iii) other than with the prior written consent of the Indemnified Party (such consent not to be unreasonably withheld, conditioned or delayed) that relates to any material customer of the Business (collectively, the “Assumption of Defense Conditions”). The Indemnified Party shall have been advised cooperate in writing good faith in the defense of any Third Party Claim assumed by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to with all reasonable out-of-pocket expenses incurred by the Indemnified Party in connection with such cooperation being borne by the Indemnifying Party. In the event that the Indemnifying Party assumes the assertion defense of which would be adverse any Third Party Claim, subject to Section 6.5(b), it shall have the interests right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the The Indemnified Party shall have the right, at its own cost and expense, to participate in the defense of any Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by control the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlementdefense thereof. If the Indemnifying Party does elects not to compromise or defend such Third Party Claim or fails to promptly notify the Indemnified Party within thirty (30) days after the receipt in writing of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects its election to undertake the defense thereofdefend as provided in this Agreement, the Indemnified Party shall have the right may, subject to contestSection 6.5(b), settle pay, compromise, defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect relating to such claim or consent to entry of any judgmentThird Party Claim. The Indemnifying Party Seller and the Indemnified Party Acquirer shall cooperate with each other in all reasonable respects in connection with the defense of any claimThird Party Claim, including making available (subject to a confidentiality agreement reasonably acceptable to the Parties) records relating to such claim Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the Indemnifying Party and/or its counseldefending Party, such management employees of the Indemnified non-defending Party as may be reasonably necessary for the preparation of the defense of such Third Party Claim; provided that the Indemnified Party and the Indemnifying Party shall use their reasonable best efforts to preserve the attorney-client privilege with respect to any information shared between the Parties in connection with such claim cooperation.
(b) Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not enter into settlement of any Third Party Claim unless (i) the Assumption of Defense Conditions have been satisfied and the Indemnifying Party has actually assumed the defense of the Third Party Claim, and (ii) the Indemnified Party has provided its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party and provides, in customary form, for testimony as witnesses the unconditional release of each Indemnified Party from all liabilities and obligations in any proceeding relating connection with such Third Party Claim and the Indemnifying Party desires to accept and agree to such claimoffer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party. If the Indemnified Party fails to consent to such firm offer within fifteen (15) days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third Party Claim and in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim shall not exceed the amount of such settlement offer. If the Indemnified Party fails to consent to such firm offer and also fails to assume defense of such Third Party Claim, then if the Assumption of Defense Conditions have been satisfied and the Indemnifying Party has actually assumed the defense of the Third Party Claim, the Indemnifying Party may settle the Third Party Claim upon the terms set forth in such firm offer to settle such Third Party Claim. If the Indemnified Party has assumed the defense pursuant to Section 6.5(a), it shall not agree to any settlement without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed).
Appears in 2 contracts
Samples: Purchase and Assignment Agreement (Crossroads Systems Inc), Purchase and Assignment Agreement
Third Party Claims. If a claim Promptly after the receipt by any Indemnified Party of notice of the commencement of any Action against such Indemnified Party by a third party is made against (other than any Indemnified Party, and if such Indemnified Party intends Action relating to seek indemnity with respect thereto under Taxes governed by Section 158.7), such Indemnified Party shall promptly notify the shall, if a claim with respect thereto is or may be made against any Indemnifying Party of pursuant to this Article 8, give such claims; provided, that the Indemnifying Party written notice thereof. The failure to so notify give such notice shall not relieve the any Indemnifying Party of its obligations hereunderfrom any obligation hereunder except where, except and then solely to the extent that, such failure actually prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have the absolute right after the receipt of notice to defend against, negotiate, settle or otherwise deal with such Action, at such Indemnifying Party’s expense and with counsel of its choice, provided that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying so notifies the Indemnified Party shall have thirty that it will defend such Action within fifteen (3015) days after receipt of such notice to assume and commences the conduct and controldefense of such Action; provided, through counsel reasonably acceptable to the however, Indemnified Party may participate in any such proceeding with counsel of its choice and at the its sole cost and expense of and the Indemnifying PartyParty shall not settle any such Action unless Indemnified Party is fully released without any admission of liability, of the settlement or defense thereof and the Indemnified Party shall cooperate with it is not otherwise obligated to undertake any action, or restricted in connection therewith; provided, that (i) taking any action by the terms of such settlement. If the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled does not elect to assume the defense of such action only to Action in accordance with the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount terms of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoingthis Section 8.5, the Indemnified Party shall have the right to pay or settle any defend such claim, provided that in such event it shall waive any right Action with counsel of its choice reasonably acceptable to indemnity therefor by Seller and the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify will reimburse the Indemnified Party within thirty (30) days after for the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense costs thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreementincluding reasonable attorneys’ fees and expenses incurred. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into will not be liable for any judgment or settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentAction effected without its prior written consent. The Indemnifying Party and the Indemnified Party shall parties hereto agree to cooperate fully with each other in all reasonable respects in connection with the defense of any claimdefense, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense negotiation or settlement of any such claim or for testimony as witnesses in any proceeding relating to such indemnity claim.
Appears in 2 contracts
Samples: Purchase Agreement (EFH Group, Inc.), Stock Purchase Agreement (Euronet Worldwide Inc)
Third Party Claims. If (a) In order for an Indemnified Party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a Loss or a claim or demand made by a any third party is made Person against any Indemnified Party, and if such the Indemnified Party intends to seek indemnity with respect thereto under Section 15(a “Third Party Claim”), such Indemnified Party shall promptly notify deliver written notice thereof to the applicable Indemnifying Party of such claimsParty; provided, however, that no delay or failure on the failure to so notify shall not relieve part of an Indemnified Party in notifying the Indemnifying Party, shall relieve an Indemnifying Party of from its obligations hereunder, except to the extent that hereunder unless the Indemnifying Party is actually and thereby materially prejudiced thereby. The (and then solely to the extent of such prejudice).
(b) If the Indemnifying Party acknowledges, in writing, its obligation to indemnify the Indemnified Party against any and all Losses that may result from a Third Party Claim pursuant to the terms of this Agreement, the Indemnifying Party shall have thirty (30) days after receipt of such the right, upon written notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense within fifteen (15) days of the Indemnifying Party, receipt of the settlement or defense thereof and notice from the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) of the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses commencement of such counsel shall be borne by such Indemnified Third Party and (ii) the Indemnifying Party shall promptly be entitled Claim, to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be thereof at the expense of the Indemnifying Party unless (x) with counsel selected by the Indemnifying Party shall have failed, within a reasonable time after having been notified by and satisfactory to the Indemnified Party. If the Indemnifying Party of the existence of such claim as provided in the preceding sentence, does not expressly elect to assume the defense of such claim, (y) Third Party Claim within the employment time period and otherwise in accordance with the first sentence of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoingthis Section 9.4(b), the Indemnified Party shall have the sole right to pay or assume the defense of and to settle any such claimThird Party Claim. The Indemnifying Party shall, provided that at the Indemnifying Party’s expense, cooperate with the Indemnified Party in such event it shall waive any right defense and make available to indemnity therefor the Indemnified Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlementParty. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake assumes the defense thereofof any Third Party Claim, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with without the prior written consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by or compromise or consent to the Indemnifying entry of any judgment with respect to such Third Party pursuant to this Agreement and Claim if such settlement, compromise or judgment (i) involves a finding or admission of wrongdoing, (ii) does not include as an unconditional term thereof the giving written release by the person claimant or persons asserting such claim to all plaintiff of the Indemnified Parties of an unconditional release Party from all liability in respect of such Third Party Claim or (iii) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder.
(c) The Indemnifying Party shall not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(d) Each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which a Proceeding in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Proceeding or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimanywhere.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Renewable Energy Group, Inc.), Purchase and Sale Agreement (Renewable Energy Group, Inc.)
Third Party Claims. If Promptly (not to exceed 10 calendar days) after the receipt by either party of notice of any Liability or Loss asserted by any third party against any Indemnified Party (collectively, an “Action”), which Action is subject to indemnification under this Agreement, such party will give reasonable written notice to the Indemnifying Party, including, without limitation, copies of any notices or other materials received in connection with such claim for indemnification; provided, however, that any failure of an Indemnified Party to give timely notice pursuant to this Section 7.5(a) shall not preclude a claim by the Indemnified Party for indemnification hereunder, but shall give rise to a third party is made claim by the Indemnifying Party against the Indemnified Party for direct damages directly incurred by the Indemnifying Party as a result of such failure. The Indemnified Party will be entitled, at the sole expense and liability of the Indemnifying Party, to exercise full control of the defense, compromise or settlement of any Action unless the Indemnifying Party, within a reasonable time (but not more than 10 Business Days) after the receipt of such notice by the Indemnified Party, and if such (i) notifies the Indemnified Party intends in writing of the Indemnifying Party’s intention to seek indemnity assume such defense, (ii) consults with the Indemnified Party with respect thereto under Section 15, to the handling of such Action and retains legal counsel reasonably satisfactory to the Indemnified Party shall promptly notify to conduct the Indemnifying Party defense of such claims; providedAction, that and (iii) provides the failure to so notify shall not relieve the Indemnifying Indemnified Party of its obligations hereunder, except with evidence to the extent Indemnified Party’s reasonable satisfaction that the Indemnifying Party is actually and materially prejudiced therebywill be able to satisfy any Liabilities in respect of such Action; it being agreed and understood that if sufficient Escrow Funds remain under the Escrow Agreement to handle such Action, than this subsection (iii) shall not be applicable to such Action. The other party will cooperate with the party assuming the defense, compromise or settlement of any Action in accordance with this Agreement in any manner that such party reasonably may request. If the Indemnifying Party shall have thirty (30) days after receipt assumes the defense of such notice to assume the conduct any Action, as provided above, it will do so diligently and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof in good faith and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall will have the right to employ separate counsel in any such action or claim and to participate in (but not control) the defense thereofdefense, compromise or settlement of the Action, but the fees and expenses of such counsel shall not will be at the expense of the Indemnifying Indemnified Party unless (xA) the Indemnifying Party shall have failed, within a reasonable time after having been notified by has agreed to pay such fees and expenses or (B) the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing advised by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such its counsel that there may be one or more legal defenses available to the Indemnified Party which it that are not different from or additional to those available to the Indemnifying Party, and in any such case that portion of the fees and expenses of such separate counsel that are reasonably related to such different or available additional matters covered by the indemnity provided in this Article VII will be paid by the Indemnifying Party. No Indemnified Party will settle, admit fault or liability with respect to, or compromise any such Action for which it is entitled to indemnification under this Agreement without the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, unless the Indemnifying Party has failed, after reasonable notice, to undertake control of such Action in the assertion of which would be adverse to manner provided in this Section 7.5(a). No Indemnifying Party will settle or compromise any such Action without the interests prior written consent of the Indemnified Party. So long as Party unless the Indemnifying Party is reasonably contesting any such claim in good faith, judgment or proposed settlement involves only the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor payment of money damages by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party and does not notify otherwise impose any other Liability, injunction or equitable relief on the Indemnified Party within thirty (30) days after the receipt of or have any other adverse impact on the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Caesars Acquisition Co)
Third Party Claims. If a claim by a third party is made against any Indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. (a) The Indemnifying Party shall have thirty (30) days after receipt the right, at its expense, to participate in or assume control of such notice to assume the conduct negotiation, settlement or defence of any Third Party Claim and if the Indemnifying Party assumes control, through counsel reasonably acceptable to it shall reimburse the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests all of the Indemnified Party. So long as 's out-of-pocket expenses prior to the time the Indemnifying Party is reasonably contesting any assumed control. If the Indemnifying Party elects to assume such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoingcontrol, the Indemnified Party shall have the right to pay participate in the negotiation, settlement or settle any defence of such claimThird Party Claim and to retain counsel to act on its behalf, provided that in the fees and disbursements of such event it counsel shall waive be paid by the Indemnified Party unless the named parties to any right action or proceeding include both the Indemnifying Party and the Indemnified Party and representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to indemnity therefor actual or potential differing interests between them (such as the availability of different defences).
(b) If any Third Party Claim is of a nature such that the Indemnified Party is required by applicable Law to incur losses or make a payment to any person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may incur such Losses or make such payment and the Indemnifying Party shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under such Third Party Claim, as finally determined, is less than the amount that was paid by the Indemnifying Party for such claim unless to the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify Indemnified Party, the Indemnified Party within thirty (30) days shall, forthwith after the receipt of the difference from the Third Party, pay the amount of such difference, together with any interest thereon paid by the Third Party to the Indemnified Party’s notice , to the Indemnifying Party. In addition, the Indemnifying Party shall post all security required by any court, regulatory body or other authority having jurisdiction, including without limitation, for purposes of enabling the Indemnifying Party to contest any Third Party Claim.
(c) If the Indemnifying Party fails to assume control of the defence of any Third Party Claim or breaches in any material respect its obligations under this Section 12.8 with respect thereto or having elected to assume control of the defence of any Third Party Claim, thereafter fails to defend the Third Party Claim within a claim of indemnity hereunder that it elects to undertake the defense thereofreasonable time, the Indemnified Party shall have the exclusive right to contest, contest the amount claimed and may settle or compromise and pay the claim but shall not thereby waive any right same on 14 days' prior written notice to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnifying Party shall, thereupon, be deemed to have agreed that such settlement is reasonable and may be agreed to by the Indemnified Party and all other persons liable in respect of the Third Party Claim unless within such 14-day period the Indemnifying Party notifies the Indemnified Party that it is assuming or reassuming control of such defence and thereafter assumes or reassumes such control and does not default.
(d) The Indemnified Party and the Indemnifying Party shall cooperate co-operate fully with each other in with respect to Third Party Claims, and shall keep each other fully advised with respect thereto (including supplying copies of all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party relevant documentation promptly as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimit becomes available).
Appears in 2 contracts
Samples: Share Purchase Agreement (Harry Winston Diamond Corp), Share Purchase Agreement (Harry Winston Diamond Corp)
Third Party Claims. If (a) A party entitled to indemnification hereunder (an “Indemnified Party”) shall notify promptly the indemnifying party (the “Indemnifying Party”) in writing of the commencement of any action or proceeding with respect to which a claim by a third party for indemnification may be made pursuant to this Agreement.
(b) In case any claim, action or proceeding is made brought against any an Indemnified Party and the Indemnified Party notifies the Indemnifying Party in writing of the commencement thereof, the Indemnifying Party shall be entitled to participate therein and to assume the defense thereof, to the extent that it chooses, with counsel reasonably satisfactory to such Indemnified Party, and if after notice from the Indemnifying Party to such Indemnified Party intends to seek indemnity with respect thereto under Section 15that it so chooses, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled liable to assume control such Indemnified Party for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that:
(i) if the Indemnifying Party fails to take reasonable steps necessary to defend diligently the action or proceeding within twenty (20) calendar days after receiving notice from such defense and shall pay the fees and expenses of counsel retained by Indemnified Party that the Indemnified Party if (i) the claim for indemnification relates reasonably believes it has failed to or arises in connection with any criminal proceeding, action, indictment, allegation or investigationdo so; or
(ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the if such Indemnified Party has been advised who is a defendant in writing by counsel that a reasonable likelihood exists of a conflict of interest between any claim or proceeding which is also brought against the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party reasonably shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel concluded that there may be one or more legal defenses available to the such Indemnified Party which are not available to the Indemnifying Party; or
(iii) if representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting then, in any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoingcase, the Indemnified Party shall have the right to pay assume or settle any such claimcontinue its own defense as set forth above (but with no more than one firm of counsel for all Indemnified Parties in each jurisdiction), provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless and the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive be liable for any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimexpenses therefor.
Appears in 2 contracts
Samples: Purchase Agreement (XINHUA SPORTS & ENTERTAINMENT LTD), Master Agreement (XINHUA SPORTS & ENTERTAINMENT LTD)
Third Party Claims. If a claim by a third party is made commences any action or makes any demand against any Indemnified Party, and if Party for which such Indemnified Party intends is entitled to seek indemnity with respect thereto indemnification by any Person (such Person, the “Indemnifying Party”) under Section 157.1 or Section 7.2 (a “Third-Party Claim”), such Indemnified Party shall will promptly notify the applicable Indemnifying Party in writing of such claimsaction or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the applicable Indemnifying Party, such failure to so notify shall not relieve limit, in any way, the obligation of the applicable Indemnifying Party of its obligations hereunderto indemnify the Indemnified Party, except to the extent that such failure materially prejudices the ability of the applicable Indemnifying Party is actually and materially prejudiced therebyto defend the action. The Indemnifying Party, with respect to any Third-Party shall have thirty Claim, may, at its own expense and without limiting its obligation to indemnify the Indemnified Party (30i) days after receipt participate in the defense of such notice action with counsel reasonably satisfactory to the Indemnified Party or (ii) assume the conduct and control, through defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the applicable Indemnifying Party at has assumed the expense defense of any Third-Party Claim, such Indemnifying Party shall provide the applicable Indemnifying Parties with copies of all notices, pleadings, and other papers filed or served in such action. If the Indemnifying PartyParty assumes the defense of any such Third-Party Claim, the Indemnified Party must consent in writing to the entry of any settlement or compromise in respect thereof (which consent shall not be unreasonably withheld or delayed) that attributes liability to the Indemnified Party and if an Indemnified Party does not consent to the settlement or defense thereof and compromise within a reasonable time under the circumstances (which “reasonable time” shall in no event be less than five (5) Business Days following the date on which the Indemnified Party shall cooperate receives a written request for such consent, together with it in connection therewith; provided, that (i) a written instrument setting forth all of the Indemnifying Party shall permit the Indemnified Party to participate in material terms of such settlement or defense through counsel chosen by such Indemnified Partycompromise), provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not thereafter be entitled obligated to assume control of such defense and shall pay the fees and expenses of counsel retained by indemnify the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses respect of such counsel shall not be at the expense of the Indemnifying Third-Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence Claim for any amount in excess of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, proposed settlement or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimcompromise.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (NewStar Financial, Inc.), Sale and Servicing Agreement (NewStar Financial, Inc.)
Third Party Claims. If a claim Promptly after the receipt by a the Company or an Investor of notice of any claim, action, suit or proceeding (collectively, an "ACTION") by any third party for which indemnification is made against any sought hereunder, such party (the "INDEMNIFIED PARTY") shall give reasonable written notice to the party from whom indemnification is claimed (the "INDEMNIFYING PARTY"). The Indemnified Party, and if such Indemnified Party intends 's failure to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly so notify the Indemnifying Party of any such claims; provided, that the failure to so notify matter shall not relieve release the Indemnifying Party of Party, in whole or in part, from its obligations hereunderto indemnify under this SECTION 11, except to the extent that the Indemnified Party's failure to so notify actually prejudices the Indemnifying Party is actually and materially prejudiced therebyParty's ability to defend against such Action. The Indemnifying Indemnified Party shall have thirty (30) days after receipt of such notice to assume the conduct and controlbe entitled, through counsel reasonably acceptable to the Indemnified Party at the sole expense and liability of the Indemnifying Party, to exercise full control of the defense, compromise or settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) of any such Action unless the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that within a reasonable time after the fees and expenses giving of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition notice by the Indemnified Party, shall: (i) notify the appropriate court rules that Indemnified Party in writing of the Indemnifying Party's intention to assume the defense thereof, and (ii) retain legal counsel reasonably satisfactory to the Indemnified Party to conduct the defense of such Action; in which case the Indemnifying Party failed shall be entitled to exercise full control of the defense, compromise or is failing settlement of such action, subject to vigorously prosecute the terms of this SECTION 11. The Indemnified Party and the Indemnifying Party shall cooperate with the party assuming the defense, compromise or defend settlement of any such claimAction in accordance herewith in any manner that such party reasonably may request. Any If the Indemnifying Party so assumes the defense of any such Action, the Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in (but not control) the defense defense, compromise, or settlement thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Indemnified Party unless (xi) the Indemnifying Party shall have failedhas agreed to pay such fees and expenses, within a reasonable time after having been notified by (ii) any material relief other than the payment of money damages is sought against the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, or (yiii) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such its counsel that there may be one or more legal defenses available to the Indemnified Party it which are not different from or additional to those available to the Indemnifying Party, or available to and in any such case the fees and expenses of such separate counsel shall be borne by the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the No Indemnified Party shall not pay settle or settle compromise or consent to entry of any judgment with respect to any such claim. Notwithstanding Action for which it is entitled to indemnification hereunder without the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by prior written consent of the Indemnifying Party for such claim Party, unless the Indemnifying Party shall have consented failed, after reasonable notice thereof, to undertake control of such payment or settlementAction in the manner provided above in this SECTION 11(c). If the No Indemnifying Party does not notify shall, without the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the written consent of the Indemnified Party, enter into settle or compromise or consent to entry of any settlement that judgment with respect to any such Action in which any relief other than the payment of money damages is not entirely indemnifiable by the Indemnifying sought against any Indemnified Party pursuant to this Agreement and does not include or any Action unless such settlement, compromise or consent includes as an unconditional term thereof the giving by the person claimant, petitioner or persons asserting plaintiff, as applicable, to such claim to all Indemnified Parties Party of an unconditional a release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimAction.
Appears in 2 contracts
Samples: Contribution and Exchange Agreement (Tci Satellite Entertainment Inc), Contribution and Exchange Agreement (Tci Satellite Entertainment Inc)
Third Party Claims. If a claim (a) Promptly after the receipt by a any party hereto of notice of any claim, action, suit or proceeding of any third party which is made against any subject to indemnification hereunder, such party ("Indemnified Party") shall give written notice of such claim to the party obligated to provide indemnification hereunder ("Indemnifying Party"), stating the nature and if basis of such claim and the amount thereof, to the extent known. Failure of the Indemnified Party intends to seek indemnity with respect thereto under Section 15, give such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify notice shall not relieve the Indemnifying Party from any liability which it may have on account of its obligations hereunderindemnification obligation or otherwise, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The .
(b) So long as the Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and controlprovides assurances, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party is capable of satisfying all Losses that may arise in respect of any matter, the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and elect to participate in the defense thereofof and, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentenceif it so chooses, to assume the defense of such claim, (y) action, suit or proceeding with counsel selected by the employment Indemnifying Party and reasonably satisfactory to the Indemnified Party. Upon any such election by the Indemnifying Party to assume the defense of such claim, action, suit or proceeding, the Indemnifying Party shall not be liable for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, provided, that the Indemnified Party may, at its option and at its own expense, participate in such defense and employ counsel has been specifically authorized in writing separate from the counsel employed by the Indemnifying Party, or (z) . The Indemnifying Party shall be liable for the named parties to any such action (including any impleaded parties) include both such reasonable fees and expenses of counsel employed by the Indemnified Party and for any period in which the Indemnifying Party and such Indemnified Party shall have been advised has not assumed the defense thereof (other than during any period in writing by such counsel that there may be one or more legal defenses available to which the Indemnified Party which are not available failed to give the Indemnifying Partynotice provided above). The parties shall use commercially reasonable efforts to minimize Losses from claims by third parties and shall act in good faith in responding to, defending against, settling or available otherwise dealing with such claims, notwithstanding any dispute as to liability as between the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Partyparties under this Article XII. So long as the Indemnifying Party is reasonably contesting The parties shall also cooperate in any such claim in good faithdefense, the Indemnified Party shall give each other full access to all information relevant thereto and make employees and other representatives available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If assumed the defense, the Indemnifying Party does shall not notify be obligated to indemnify the Indemnified Party within thirty (30) days after hereunder for any settlement entered into without the receipt of the Indemnified Indemnifying Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof's prior written consent, the Indemnified Party shall have the right to contest, settle or compromise the claim but which consent shall not thereby waive any right to indemnity therefor pursuant to this Agreementbe unreasonably withheld or delayed. The Indemnifying Party shall not, except with not settle any claim without the prior written consent of the Indemnified Party, enter into any settlement that is which consent shall not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person be unreasonably withheld or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentdelayed. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense provisions of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim.this Section
Appears in 2 contracts
Samples: Merger Agreement (Alaris Medical Inc), Merger Agreement (Alaris Medical Systems Inc)
Third Party Claims. If (a) In order for any Parent Indemnified Party or Company Stockholder Indemnified Party to be entitled to any indemnification provided for under this Article 9 in respect of, arising out of or involving a claim made by any Person other than the Company Stockholders, Stockholder Representative, Parent, Merger Sub or the Surviving Corporation, or their respective officers, directors, stockholders, owners, successors, assigns or affiliates (a third party is made “Third-Party Claim”) against any Indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15indemnified party, such Indemnified Party shall promptly indemnified party must notify the Indemnifying indemnifying party in writing of the Third- Party Claim promptly after receipt by such indemnified party of such claimswritten notice of the Third-Party Claim; provided, however, that the failure of any indemnified party to so notify give notice as provided in this Section 9.5 shall not relieve the Indemnifying Party an indemnifying party of its indemnification obligations hereunder, hereunder except to the extent that the Indemnifying indemnifying party proves actual loss and prejudice by such failure to give such notice.
(b) The indemnifying party shall be entitled to participate in the defense of a Third-Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) Claim and, if it so chooses within 10 days after receipt of such notice of the Third- Party Claim, to assume or cause the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense assumption of the Indemnifying Party, of the settlement or defense thereof and with counsel selected by the Indemnified Party shall cooperate with it in connection therewith; provided, that indemnifying party (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne is not reasonably objected to by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled indemnified party). Should the indemnifying party elect to assume the defense of a Third-Party Claim, the indemnifying party shall be deemed to have acknowledged its obligation to defend such action only Third-Party Claim as a claim subject to the extent indemnification obligations of this Agreement. If the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, indemnifying party elects to assume the defense of a Third-Party Claim, the indemnified party will fully cooperate with the indemnifying party in connection with such claimdefense.
(c) If the indemnifying party assumes the defense of a Third-Party Claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Partythen, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So as long as the Indemnifying Party indemnifying party is reasonably contesting any such claim in good faith, using its commercially reasonable efforts, the Indemnified Party indemnified party shall not pay admit any Liability with respect to, or settle settle, compromise or discharge, any Third-Party Claim without the indemnifying party’s prior written consent, and the indemnified party will agree to any settlement, compromise or discharge of the Third- Party Claim the indemnifying party may recommend which releases the indemnified party unconditionally and completely in connection with such claimThird-Party Claim and which does not adversely affect the indemnified party in any manner. Notwithstanding the foregoing, the Indemnified Party indemnified party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlementindemnifying party. If the Indemnifying Party does not notify indemnifying party assumes the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice defense of a claim of indemnity hereunder that it elects to undertake Third- Party Claim, then the defense thereofindemnifying party shall not, without the Indemnified Party shall have the right to contestindemnified party’s prior written consent, settle or compromise any Third-Party Claim or consent to the claim but shall not thereby waive entry of any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and judgment which does not include as an unconditional term thereof the giving delivery by the person claimant or persons asserting such claim plaintiff to all Indemnified Parties the indemnified party of an unconditional a written release from all liability with Liability in respect to of such claim or consent to entry of any judgment. The Indemnifying Third-Party and Claim.
(d) If the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of indemnifying party does not assume the defense of any such Third-Party Claim, the indemnified party may defend the same in such manner as it may deem appropriate in its sole discretion, including, but not limited to, settling such claim or for testimony litigation. The indemnified party’s defense of such Third-Party Claim shall not prohibit any remedies of the indemnified party against the indemnifying parties, and the indemnified party shall be permitted during the course of or after the resolution of such Third-Party Claim to seek recovery of the Parent Losses or Company Stockholder Losses, as witnesses in any proceeding relating applicable, from the indemnifying party to such claimthe extent the indemnified party is entitled hereunder.
Appears in 2 contracts
Samples: Merger Agreement (Precision Therapeutics Inc.), Merger Agreement
Third Party Claims. (a) If any person entitled to indemnification under this Agreement (an “Indemnitee”) receives notice of the assertion of any claim or of the commencement of any action or proceeding by any person that is not a claim by party to this Agreement or a third subsidiary of any such party is made (a “Third Party Claim”) against any Indemnified Partysuch Indemnitee, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party the Indemnitee shall promptly notify provide written notice thereof (including a description of the Indemnifying Third Party Claim and an estimate of any Indemnifiable Losses (which estimate shall not be conclusive as to the final amount of such claims; provided, that Indemnifiable Losses)) to the failure party required to so notify provide indemnification under this Agreement (the “Indemnifying Party”) within 10 business days after the Indemnitee’s receipt of notice of such Third Party Claim. Any delay by the Indemnitee in providing such written notice shall not relieve the Indemnifying Party of its obligations hereunder, any liability for indemnification hereunder except to the extent that the rights of the Indemnifying Party is actually and are materially prejudiced thereby. by such delay.
(b) The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party right to participate in such settlement or defense through counsel chosen or, by such Indemnified Partygiving written notice to the Indemnitee, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of any Third Party Claim at such action only Indemnifying Party’s expense and by such Indemnifying Party’s own counsel (which shall be reasonably satisfactory to the extent Indemnitee), and the Indemnifying Indemnitee will cooperate in good faith in such defense. The Indemnitee may retain its own counsel with respect to such Third Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; providedClaims, further, that but the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and liable for any legal expenses of counsel retained incurred by the Indemnified Party if (i) Indemnitee after the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party Indemnitee has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense received notice of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, Party’s intent to assume the defense of such claima Third Party Claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) unless the named parties to any such action Third Party Claim (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing the Indemnitee and representation of both parties by such the same counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse inappropriate due to the actual or potential differing interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlementbetween them. If the Indemnifying Party does not notify fails to take steps reasonably necessary to diligently pursue the Indemnified defense of such Third Party Claim within thirty (30) 60 days after the of receipt of notice from the Indemnified Party’s notice of a claim of indemnity hereunder Indemnitee that it elects to undertake the defense thereofsuch steps are not being taken, the Indemnified Indemnitee may assume its own defense and the Indemnifying Party shall have be liable for the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. reasonable costs thereof.
(c) The Indemnifying Party shall not, except with may settle any Third Party Claim which it has elected to defend so long as the written consent of the Indemnified Party, enter into Indemnitee to such settlement is first obtained (which consent shall not be unreasonably withheld). The Indemnitee shall not settle any settlement that is not entirely indemnifiable by Third Party Claim without the written consent of the Indemnifying Party pursuant to this Agreement and does (which consent shall not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to be unreasonably withheld) if the Indemnifying Party and/or its counsel, elects not to defend such employees of Third Party Claim.
(d) In the Indemnified event that a Third Party Claim involves a proceeding as to which both the UPC Group and the Overnite Group may be reasonably necessary for Indemnifying Parties, the preparation of the parties hereto agree to cooperate in good faith in a joint defense of any such claim or for testimony as witnesses in any proceeding relating to such claimThird Party Claim.
Appears in 2 contracts
Samples: Stock Purchase and Indemnification Agreement (Overnite Corp), Stock Purchase and Indemnification Agreement (Overnite Corp)
Third Party Claims. If All claims for indemnification made under this Agreement resulting from, related to or arising out of a third-party claim against an Indemnified Party shall be made in accordance with the following procedures. An Indemnified Party shall give prompt written notification to the Indemnifying Party of the commencement of any action, suit or proceeding relating to a third-party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a third party. Such notification shall include a description in reasonable detail (to the extent known by the Indemnified Party) of the facts constituting the basis for such third-party is made against any claim and the amount of the Damages claimed. Within 30 days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party assume control of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictmentsuit, allegation proceeding or investigation; (ii) the claim seeks an injunction or equitable relief against with counsel reasonably satisfactory to the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt assume control of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereofsuch defense, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreementcontrol such defense. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement not controlling such defense may participate therein at its own expense; provided that is not entirely indemnifiable by if the Indemnifying Party pursuant to this Agreement assumes control of such defense and does not include as an unconditional term thereof the giving by Indemnified Party reasonably concludes, based on advice from counsel, that the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith shall be considered “Damages” for purposes of this Agreement. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party. The Indemnifying Party shall not agree to any settlement of such action, suit, proceeding or claim that does not include a complete release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party without the prior written consent of the Indemnified Party. Any Indemnified Party shall cooperate in all reasonable respects (at the Indemnifying Party’s expense) with the Indemnifying Party and its attorneys in the investigation, trial and defense of any third-party claim and any appeal arising therefrom and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. Such cooperation shall include access during normal business hours afforded to the Indemnifying Party and its agents and representatives to, and reasonable retention by the Indemnified Party of, records and information which have been identified by the Indemnifying Party as being reasonably relevant to such third-party claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Parties shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating notifications to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claiminsurers.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Idexx Laboratories Inc /De)
Third Party Claims. If a claim by a third party is made against any an Indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15this Article XII, such Indemnified Party Party, shall promptly notify AHD, if an Atlas Indemnified Party, or Atlas, if an AHD Indemnified Party (AHD or Atlas, as the case may be, the “Indemnifying Party Party”), of such claims; provided, that the . The failure to so notify provide such notice shall not relieve the Indemnifying Party result in a waiver of its obligations hereunder, any right to indemnification hereunder except to the extent that the Indemnifying Party is actually and materially prejudiced therebyby such failure. The Indemnifying Party shall have thirty (30) 30 days after receipt of such notice to assume the elect to undertake, conduct and control, through counsel reasonably acceptable to the Indemnified Party of its own choosing and at the expense of the Indemnifying Partyits own expense, of the settlement or defense thereof (provided that the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party in respect of such claim), and the Indemnified Party shall cooperate with it in connection therewith; provided. Notwithstanding the foregoing, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) ’s expense if the named parties to any such action proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party Party, and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing by such that it elects to employ separate counsel that there may be one or more legal defenses available to at the Indemnified Party which are not available to expense of the Indemnifying Party, or available to the Indemnifying Party shall not have the assertion right to assume the defense thereof and the reasonable expenses of which would such counsel shall be adverse to at the interests expense of the Indemnified Indemnifying Party). So long as Notwithstanding the foregoing, in no event shall an Indemnifying Party is reasonably contesting any such claim in good faith, be required to pay the expenses of more than one (1) separate counsel. The Indemnified Party shall not pay or settle any such claimclaim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim; provided that, provided that in such event event, it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim judgment or for testimony as witnesses in any proceeding relating to such claimthat imposes injunctive or equitable relief.
Appears in 2 contracts
Samples: Transaction Agreement (Atlas Energy, Inc.), Transaction Agreement (Atlas Pipeline Holdings, L.P.)
Third Party Claims. If a claim (a) Promptly after the receipt by a any Parent Indemnitee of notice of any claim, action, suit or proceeding of any third party which is made against any Indemnified Partysubject to indemnification hereunder, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party Parent Indemnitee shall promptly notify the Indemnifying Party give written notice of such claims; providedclaim to the Indemnitor, that stating the failure nature and basis of such claim and the amount thereof, to so notify the extent known. Failure of the Parent Indemnitee to give such notice shall not relieve the Indemnifying Party Parent Indemnitee from any liability which it may have on account of its obligations hereunderindemnification obligation or otherwise, except to the extent that the Indemnifying Party Parent Indemnitee is actually and materially prejudiced thereby. .
(b) The Indemnifying Party Indemnitor shall have thirty (30) days after receipt continue the defense of such notice to assume the conduct Current Actions, for itself and control, through counsel reasonably acceptable on behalf of the Partnership subject to the Indemnified Party at the expense provisions of the Indemnifying Party, of the settlement or defense thereof this Section 5.03 and the Indemnified Party Partnership, as a Parent Indemnitee, shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense benefit of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount provisions of any Loss resulting therefrom; provided, further, that the Indemnifying Party this Section 5.03 with respect thereto. The Indemnitor shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and elect to participate in the defense thereofof and, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentenceif it so chooses, to assume the defense of such claim, (y) action, suit or proceeding with counsel selected by the employment Indemnitor and reasonably satisfactory to the Parent Indemnitee. Upon any such election by the Indemnitor to assume the defense of such counsel has been specifically authorized in writing claim, action, suit or proceeding, the Indemnitor shall not be liable for any legal or other expenses subsequently incurred by the Indemnifying PartyParent Indemnitee in connection with the defense thereof, or provided, however, that (zi) if the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party Parent Indemnitee shall have been advised in writing by such reasonably concluded that separate counsel that there may be one or more legal defenses available to is required because a conflict of interest would otherwise exist, then the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party Parent Indemnitee shall have the right to pay select separate counsel to participate in the defense of such action on its behalf, at the expense of the Indemnitor and (ii) the Parent Indemnitee may, at its option and at its own expense, participate in such defense and employ counsel separate from the counsel employed by the Indemnitor. The Indemnitor shall be liable for the reasonable fees and expenses of counsel employed by the Parent Indemnitee for any period in which the Indemnitor has not assumed the defense thereof (other than during any period in which the Parent Indemnitee failed to give the notice provided above). The parties shall use commercially reasonable efforts to minimize Losses from claims by third parties and shall act in good faith in responding to, defending against, settling or otherwise dealing with such claims, notwithstanding any dispute as to liability as between the parties under this Article V. The parties shall also cooperate in any such defense, give each other full access to all non-privileged information relevant thereto and make employees and other representatives available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnitor shall have assumed the defense, the Indemnitor shall not be obligated to indemnify the Parent Indemnitee hereunder for any settlement entered into without the Indemnitor's prior written consent, which consent shall not be unreasonably withheld or delayed. Unless the sole relief is monetary damages which are payable in full by the Indemnitor, the Indemnitor shall not settle any such claim, provided that in such event it shall waive any right to indemnity therefor by claim without the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the prior written consent of the Indemnified PartyParent Indemnitee, enter into any settlement that is which consent shall not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person be unreasonably withheld or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimdelayed.
Appears in 2 contracts
Samples: Purchase Agreement (Hallwood Realty Partners L P), Purchase Agreement (Hallwood Group Inc)
Third Party Claims.
(a) If a claim any Proceeding is instituted by or against a third party is made against any Indemnified Party, and if such with respect to which the Indemnified Party intends to seek indemnity with respect thereto under Section 15this Article IX (a “Third Party Claim”), such the Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure Third Party Claim and tender to so notify shall not relieve the Indemnifying Party the conduct or defense of its obligations hereundersuch Third Party Claim. A failure by the Indemnified Party to give notice and to tender the conduct or defense of the Third Party Claim in a timely manner pursuant to this Section 9.4 shall not limit the obligation of the Indemnifying Party under this Article IX, except (i) to the extent such Indemnifying Party is materially prejudiced thereby, (ii) with respect to out-of-pocket expenses incurred during the period in which notice was not provided, and (iii) if such notice is not given within the applicable time period provided under Section 9.5
(b) The Indemnifying Party shall have the right to defend the Indemnified Party against such Third Party Claim as provided herein. If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party elects to assume the defense of the Third Party Claim (such election to be without prejudice to the right of the Indemnifying Party to dispute whether such claim is actually an indemnifiable Loss under this Article IX), then the Indemnifying Party shall have the right to defend such Third Party Claim with counsel selected by the Indemnifying Party and materially prejudiced therebyreasonably satisfactory to the Indemnified Party, in all appropriate proceedings, to a final conclusion or settlement in accordance with this Section 9.4(b). The Indemnifying Party shall use reasonably diligent and good faith efforts to defend or prosecute such Third Party Claim and shall keep the Indemnified Party reasonably advised of the status of such claim and defense thereof and shall consider in good faith recommendations made by the Indemnified Party with respect thereto. The Indemnifying Party shall have thirty (30) days after receipt full control of such notice to assume defense and proceedings, including any compromise or settlement thereof; however, neither Party shall enter into any settlement agreement without the conduct and control, through counsel reasonably acceptable to written consent of the Indemnified Party at (which consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding the expense foregoing, such consent shall not be required if (i) the settlement agreement contains a complete and unconditional general release by the third party asserting the Third Party Claim to all Indemnified Parties affected by the claim, (ii) the settlement agreement does not contain any admission of liability by or other obligation on the part of the Indemnifying Party, Indemnified Party or sanction or restriction upon the conduct or operation of any business by the Indemnified Party or its Affiliates and (iii) the settlement does not require any payment to be made by the Indemnified Party to any Person. The Indemnified Party may participate in, but not control, any defense or defense thereof settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 9.4(b), and the Indemnified Party shall cooperate bear its own costs and expenses with it in connection therewithrespect to such participation; provided, however, that (i) if the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses assumes control of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation claim and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; Party have, in the opinion of legal counsel, materially conflicting interests or (iv) upon petition by different defenses available with respect to such claim that cause the Indemnified PartyParty to hire its own separate counsel with respect to such proceeding, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the reasonable fees and expenses of such a single counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion shall be considered “Losses” for purposes of which would be adverse to the interests of the Indemnified Partythis Agreement. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement.
(c) If the Indemnifying Party does not notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 9.4(b) within thirty (30) calendar days after the receipt of any Claim Notice, then the Indemnified Party shall defend, and be reimbursed by the Indemnifying Party for its reasonable cost and expense in regard to the Third Party Claim with counsel selected by the Indemnified Party’s notice of a claim of indemnity hereunder , in all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party; provided, that if it elects is ultimately determined that the Indemnified Party would not be entitled to undertake indemnification hereunder, even if the defense thereoffacts alleged in the Third Party Claim were true as alleged, the Indemnified Party shall promptly repay in full such reimbursed amounts to the Indemnifying Party. In the circumstances described in this Section 9.4(c), the Indemnified Party shall defend any such Third Party Claim in good faith and have full control of such defense and proceedings; provided, however, that the right Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if indemnification is to contestbe sought hereunder, settle or compromise without the claim but Indemnifying Party’s consent (which consent shall not thereby waive any right to indemnity therefor pursuant to this Agreementbe unreasonably withheld, conditioned or delayed). The Indemnifying Party shall notmay participate in, except with the consent of but not control, any defense or settlement controlled by the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement Section 9.4(c), and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability Indemnifying Party shall bear its own costs and expenses with respect to such claim or consent to entry of any judgmentparticipation. The Indemnifying
(d) If requested by the Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with controlling the defense of a Third Party Claim, the other Party agrees, at the sole cost and expense of such controlling Party (but only if the controlling Party is actually entitled to indemnification hereunder), to cooperate with the controlling Party and its counsel in contesting any claimThird Party Claim being contested, including making providing access to documents, records and information. In addition, the Party that is not controlling the defense will make its personnel available records relating to such claim and furnishing, without expense at no cost to the Indemnifying Party and/or its counselfor conferences, such employees of the Indemnified Party discovery, proceedings, hearings, trials or appeals as may be reasonably necessary for required by the preparation of Indemnifying Party. The Party not controlling the defense also agrees to cooperate with the controlling Party and its counsel in the making of any such claim related counterclaim against the Person asserting the Third Party Claim or for testimony as witnesses in any proceeding relating cross complaint against any Person and executing powers of attorney to such claim.the extent necessary.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Ani Pharmaceuticals Inc), Asset Purchase Agreement (Ani Pharmaceuticals Inc)
Third Party Claims. If (a) In order for any Purchaser Indemnified Party or any Seller Indemnified Party to be entitled to any indemnification provided for under this Article 13 in respect of, arising out of or involving a claim made by any person other than Seller or Purchaser or their respective successors, assigns or affiliates (a third party is made "Third Party Claim") against any Indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15indemnified party, such Indemnified Party shall promptly indemnified party must notify the Indemnifying indemnifying party in writing of the Third Party Claim promptly after receipt by such indemnified party of such claimswritten notice of the Third Party Claim; provided, however, that the failure of any indemnified party to so notify give notice as provided in this Section 13.4 shall not relieve the Indemnifying Party an indemnifying party of its obligations hereunder, hereunder except to the extent that the Indemnifying indemnifying party actually has been prejudiced by such failure to give notice. Thereafter, the indemnified party shall deliver to the indemnifying party, as promptly as practicable and, in any event, within ten (10) days after such indemnified party's receipt thereof, copies of all notices and other documents relating to the Third Party Claim.
(b) If a Third Party Claim is actually and materially prejudiced thereby. The Indemnifying Party made against an indemnified party, the indemnifying party shall have be entitled to participate in the defense thereof and, if it so chooses within thirty (30) days after receipt of such notice of the Third Party Claim, to assume or cause the conduct and controlassumption of the defense thereof with counsel selected by the indemnifying party (provided such counsel is not reasonably objected to by the indemnified party). Should the indemnifying party elect to assume or cause the assumption of the defense of a Third Party Claim, through counsel reasonably acceptable the indemnifying party will not be liable to the Indemnified Party at indemnified party for any legal expenses subsequently incurred by the expense of indemnified party in connection with the Indemnifying Party, of the settlement or defense thereof and unless the Indemnified Party shall cooperate with it indemnifying party has agreed in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party writing to participate in pay such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses or, in the reasonable judgment of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; providedindemnified party, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party indemnified party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing indemnifying party exists with respect to vigorously prosecute or defend such claim. Any Indemnified Party shall have If the right to employ separate counsel in any such action or claim and indemnifying party elects so to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to or assume the defense of a Third Party Claim, the indemnified party will fully cooperate with the indemnifying party in connection with such claimdefense.
(c) If the indemnifying party assumes the defense of a Third Party Claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Partythen, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So as long as the Indemnifying Party indemnifying party is reasonably contesting any such claim in good faith, the Indemnified Party indemnified party shall not pay admit any liability with respect to, or settle settle, compromise or discharge, any Third Party Claim without the indemnifying party's prior written consent, and the indemnified party will agree to any settlement, compromise or discharge of the Third Party Claim the indemnifying party may recommend which releases the indemnified party unconditionally and completely in connection with such claimThird Party Claim and which does not materially adversely affect the indemnified party. Notwithstanding the foregoing, the Indemnified Party indemnified party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlementindemnifying party. If the Indemnifying Party does not notify indemnifying party assumes the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice defense of a claim of indemnity hereunder that it elects to undertake Third Party Claim, then the defense thereofindemnifying party shall not, without the Indemnified Party shall have the right to contestindemnified party's prior written consent, settle or compromise any Third Party Claim or consent to the claim but shall not thereby waive entry of any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and judgment which does not include as an unconditional term thereof the giving delivery by the person claimant or persons asserting such claim plaintiff to all Indemnified Parties the indemnified party of an unconditional a written release from all liability with in respect to of such claim or consent to entry of any judgment. The Indemnifying Third Party and Claim.
(d) If the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of indemnifying party does not assume the defense of any such Third Party Claim, the indemnified party may defend the same in such manner as it may reasonably deem appropriate, including, but not limited to, settling such claim or litigation after giving five (5) business days' prior written notice to the indemnifying party setting forth the terms and conditions of settlement.
(e) The indemnifying party shall in no case settle or compromise any Third Party Claim or consent to the entry of any judgment, in either case for testimony as witnesses other than solely money damages, without the consent of the indemnified party if such settlement, compromise or judgment would adversely affect the rights of the indemnified party in any proceeding relating continuing manner.
(f) The amount that an indemnifying party shall be obligated to reimburse an indemnified party in connection with any Third Party Claim shall be reduced by the amount of the insurance benefits, if any, obtained by the indemnified party by reason of the matter giving rise to such claim.
Appears in 2 contracts
Samples: Asset Purchase Agreement (National Service Industries Inc), Asset Purchase Agreement (G&k Services Inc)
Third Party Claims. (a) If a claim claim, action suit or proceeding by a third Person who is not a party hereto or an Affiliate thereof (a “Third Party Claim”) is made against any Person entitled to indemnification pursuant to Section 7.02 (and “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15this Article VII, such Indemnified Party shall promptly notify the Indemnifying Party obligated to indemnify such Indemnified Party or, in the case of a Purchaser Indemnitee seeking indemnification, such Purchaser Indemnitee shall promptly notify the Representative (in each case, such notified Party, the “Responsible Party”) of such claims; provided, provided that the failure to so notify shall not relieve the Indemnifying Responsible Party of its obligations hereunder, except to the extent that the Indemnifying Responsible Party is actually and materially prejudiced thereby. Such notice shall identify the basis under which indemnification is sought pursuant to Section 7.02 and enclose true and correct copies of any written document furnished to the Indemnified Party by the Person that instituted the Third Party Claim. The Indemnifying Responsible Party shall have thirty (30) 30 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Responsible Party, of the settlement or defense thereof thereof, and the Indemnified Party shall cooperate with it the Responsible Party in connection therewith; provided, provided that (i) the Indemnifying Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that Party (the reasonable fees and expenses of such counsel shall be borne by such Indemnified Party Party); and (ii) provided further that the Indemnifying Responsible Party shall promptly be entitled not have the right to assume (or continue to assume) the defense of such action only to any Third Party Claim, notwithstanding the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control giving of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party written acknowledgement, if (i) the Indemnified Party has one or more legal or equitable defenses available to them which are in direct conflict to those available to the Responsible Party, (ii) such third party claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) investigation or seeks any remedy other than the claim seeks an injunction or equitable relief against the Indemnified Party; payment of money damages, (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between and Responsible Party are both named parties to the Indemnifying Party applicable proceedings and the Indemnified Party has reasonably concluded based on the advice of counsel that representation of both parties by the same counsel, or the conduct of such defense by the Responsible Party; , would be inappropriate due to actual or reasonably foreseeable differing interests between them, (iv) upon petition by the Indemnified Party, the appropriate court rules it is reasonably likely that the Indemnifying Losses arising from such Third Party failed Claim (if determined in any manner) will exceed the amount such Indemnified Party will be entitled to recover as a result of the limitations set forth in this Article VII, or (v) the Third Party Claim arises out of or is failing related to vigorously prosecute or defend such claimthe Albion Litigation. Any Indemnified If the Responsible Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume assumes the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified a Third Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faithClaim, the Indemnified Party shall not pay or settle any such claim. Notwithstanding claim without the foregoing, Responsible Party’s consent (which shall not be unreasonably withheld) unless the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive waives any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlementclaim. If the Indemnifying Responsible Party does not notify the Indemnified Party within thirty (30) 30 days after the receipt of the Indemnified Party’s notice of a claim of to indemnity hereunder that it elects to undertake the defense thereof or if the Indemnified Party is not permitted to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement; provided that any settlement shall require the prior written consent of the Responsible Party, which will not be unreasonably withheld or delayed. The Indemnifying Responsible Party shall not, except with the consent of the Indemnified Party, enter into settle, compromise or discharge, or admit any settlement that is not entirely indemnifiable liability with respect to, any such Third Party Claim unless the relief consists solely of money Losses to be paid by the Indemnifying Responsible Party pursuant to this Agreement and does not include includes as an unconditional term thereof the giving by the person or persons Person(s) asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim claim.
(b) All of the Parties shall reasonably cooperate in the defense or consent to entry prosecution of any judgment. The Indemnifying Third Party Claim in respect of which indemnity may be sought hereunder and the Indemnified Party each of Purchaser and Representative (or a duly authorized representative of such Party) shall cooperate with each furnish such records, information, testimony and other in all reasonable respects in connection with the defense of any claimdocumentation and attend such conferences, including making available records relating to such claim discovery proceedings, hearings, trials and furnishingappeals, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses requested in any proceeding relating to such claimconnection therewith. [*****].
Appears in 2 contracts
Samples: Stock and LLC Purchase Agreement, Stock and LLC Interest Purchase Agreement (Innophos Holdings, Inc.)
Third Party Claims. If a claim by a third party Third Party (a "Third Party Claim") is made against any a member of the Issuer Indemnity Group or Seller Indemnity Group (as applicable, the "Indemnified Party, ") and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15this ARTICLE 5, such Indemnified Party shall promptly notify the Party which the Indemnified Party asserts is obligated to indemnify the Indemnified Party pursuant to this ARTICLE 5 (the "Indemnifying Party Party") of such claims; provided, that claim in writing setting out in reasonable detail a description of the failure to so notify shall not relieve the Indemnifying facts underlying such Third Party Claim and enclosing a copy of its obligations hereunder, except all papers (if any) served with respect to the extent that the Indemnifying Third Party is actually and materially prejudiced therebyClaim. The Indemnifying Party shall have thirty (30) 30 days after receipt of such notice to assume notify the conduct Indemnified Party that it will, and to commence to, undertake, conduct, and control, through counsel reasonably acceptable to the Indemnified Party of its own choosing and at the expense of the Indemnifying Partyits own expense, of the settlement or defense thereof and the Indemnified Party shall cooperate with it the Indemnifying Party in connection therewith; provided, provided that (i) the Indemnifying Party shall permit the Indemnified Party to participate in (but not control) such settlement or defense through counsel chosen by such Indemnified Party at the expense of such Indemnified Party; provided, further that, to the extent that the Indemnified Party reasonably appears to have defenses available to it that are different from or additional to those available to the Indemnifying Party, provided that the fees and expenses assertion of such different or additional defenses by such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party, at its own cost and expense, (a) has within such 30 days notified the Indemnified Party that it will, and has commenced to, undertake the defense of, and has agreed to assume full responsibility for (subject to the terms and limitations contained in this ARTICLE 5), all Covered Liabilities allocated to it under this Agreement with respect to such Third Party Claim, (b) is reasonably contesting any such claim Third Party Claim in good faithfaith by appropriate Proceedings timely initiated and diligently conducted or is reasonably attempting to settle such Third Party Claim, and (c) has taken such action (including the posting of a bond, deposit, or other security) as may be necessary, if applicable, to prevent foreclosure of a lien against or attachment of the property of the Indemnified Party for payment of such Third Party Claim, the Indemnified Party shall not pay or settle any such claimclaim and the Indemnifying Party shall have full control of such defense and Proceedings, including any compromise or settlement thereof (unless the compromise or settlement includes the payment of any amount by, the performance of any obligation by, or the limitation of any material right or benefit of, the Indemnified Party, in which event such settlement or compromise shall not be effective without the consent of the Indemnified Party, which shall not be unreasonably withheld or delayed). Notwithstanding compliance by the foregoingIndemnifying Party with the preceding sentence, the Indemnified Party shall have the right to pay or settle any such claimThird Party Claim; provided that, provided that in such event it shall waive any right to indemnity therefor by if the Indemnifying Party for is in material compliance with the preceding sentence at the time of such claim unless payment or settlement by the Indemnified Party, then the Indemnifying Party shall have consented no responsibility to make any payment or reimbursement with respect to such payment claim or settlementthe settlement thereof. If If, within 30 days after the receipt of the Indemnified Party's notice of a claim of indemnity hereunder in respect of a Third Party Claim, the Indemnifying Party does not notify the Indemnified Party within thirty that the Indemnifying Party elects, at its cost and expense, to undertake the defense thereof and assume full responsibility for all Covered Liabilities allocated to it under this Agreement with respect to such Third Party Claim (30) days after subject to the receipt terms and limitations contained in this ARTICLE 5), or if the Indemnifying Party gives such notice and thereafter fails to contest or attempt to settle such Third Party Claim in good faith or to take such action as may reasonably be necessary, if applicable, to prevent foreclosure of a lien against or attachment of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof's property as contemplated above, the Indemnified Party shall have the right to contest, settle settle, or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Alpine Summit Energy Partners, Inc.), Asset Purchase Agreement (Alpine Summit Energy Partners, Inc.)
Third Party Claims. If a claim The obligation of each party to indemnify the other party under the provisions of this Article with respect to claims resulting from the assertion of liability by those not parties to this Agreement (Including without limitation governmental claims for penalties, fines and assessments) shall be subject to the following terms and conditions:
(a) The party seeking indemnification hereunder (the "Indemnified Party") shall give written notice to the other party (the "Indemnifying Party") within 30 days following any assertion of liability by a third party is made against any Indemnified Partywhich might give rise to a claim for indemnification, which notice shall state the nature and if such Indemnified Party intends basis of the assertion and the amount thereof, in each case to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party of such claimsextent known; provided, however, that no delay on the failure to so notify part of the Indemnified Party in giving notice shall not relieve the Indemnifying Party of its obligations hereunder, except any obligation to indemnify unless (and then solely to the extent that that) the Indemnifying Party is actually prejudiced by such delay.
(b) If any action, suit or proceeding (a "Legal Action") is brought against the Indemnified Party with respect to which the Indemnifying Party may have an obligation to indemnify the Indemnified Party, the Legal Action shall be defended by the Indemnifying Party, and materially prejudiced thereby. The such defense shall include all proceedings for appeal or review which counsel for the Indemnified Party shall reasonably deem appropriate.
(c) Notwithstanding the provisions of the previous subsection of this Section 8.5, until the Indemnifying Party shall have thirty assumed the defense of any such Legal Action, the defense shall be handled by the Indemnified Party. Furthermore, (30A) days after receipt of such notice if the Indemnified Party shall have reasonably concluded that there are likely to assume be defenses available to it that are different from or in addition to those available to the conduct and control, through counsel Indemnifying Party; (B) if the Indemnifying Party fails to provide the Indemnified Party with evidence reasonably acceptable to the Indemnified Party at the expense of that the Indemnifying Party, of Party has sufficient financial resources to defend and fulfill its indemnification obligation with respect to the settlement Legal Action; (C) if the Legal Action involves other than money damages and seeks injunctive or defense thereof and other equitable relief; or (D) if a judgment against the Indemnified Party shall cooperate with it will, in connection therewith; provided, that (i) the Indemnifying Party shall permit good faith opinion of the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall establish a custom or precedent which will be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only materially adverse to the extent the Indemnifying Party acknowledges best interests of its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; providedcontinuing business, further, that the Indemnifying Party shall not be entitled to assume control the defense of such the Legal Action and the defense and shall pay be handled by the fees and expenses Indemnified Party. If the defense of counsel retained the Legal Action is handled by the Indemnified Party if (i) under the claim for indemnification relates to or arises in connection with any criminal proceedingprovisions of this subsection, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified pay all legal and other expenses reasonably incurred by the Indemnified Party of the existence of in conducting such claim as provided in the preceding sentence, to assume the defense of such claim, defense.
(yd) the employment of such counsel has been specifically authorized in writing In any Legal Action initiated by a third party and defended by the Indemnifying Party, or Party (zA) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claimbe represented by advisory counsel and accountants, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless at its own expense, (B) the Indemnifying Party shall have consented keep the Indemnified Party fully informed as to the status of such payment Legal Action at all stages thereof, whether or settlement. If not the Indemnified Party is represented by its own counsel, (C) the Indemnifying Party does not notify shall make available to the Indemnified Party within thirty (30) days after the receipt and its attorneys, accountants and other representatives, all books and records of the Indemnified Indemnifying Party relating to such Legal Action, and (D) the parties shall render to each other such assistance as may be reasonably required in order to ensure the proper and adequate defense of the Legal Action.
(e) In any Legal Action initiated by a third party and defended by the Indemnifying Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with not make settlement of any claim without the written consent of the Indemnified Party, enter into any settlement that is which consent shall not entirely indemnifiable by be unreasonably withheld. Without limiting the Indemnifying Party pursuant generality of the foregoing, it shall not be deemed unreasonable to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or withhold consent to entry of any judgment. The Indemnifying Party and a settlement involving injunctive or other equitable relief against the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claimor its assets, including making available records relating to such claim and furnishingemployees or business, without expense to the Indemnifying Party and/or its counsel, such employees of or relief which the Indemnified Party as may reasonably believes could establish a custom or precedent which will be reasonably necessary for materially adverse to the preparation best interests of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimits continuing business.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Communications Instruments Inc), Asset Purchase Agreement (Communications Instruments Inc)
Third Party Claims. If a claim by a third party any demand, claim, action or cause of action, suit, proceeding or investigation (collectively, the “Claim”) is made brought against any an Indemnified Party, and if such Party for which the Indemnified Party intends to seek indemnity with respect thereto under Section 15from the other party hereto (the “Indemnifying Party”), then the Indemnified Party within twenty-one (21) days after such Indemnified Party's receipt of the Claim, shall notify the Indemnifying Party pursuant to Paragraph “C” of Article “24” of this Agreement which notice shall contain a reasonably thorough description of the nature and amount of the Claim (the “Claim Notice”). The Indemnifying Party shall promptly have the option to undertake, conduct and control the defense of such claim or demand. Such option to undertake, conduct and control the defense of such claim or demand shall be exercised by notifying the Indemnified Party within ten (10) days after receipt of the Claim Notice pursuant to Paragraph “C” of Article “24” of this Agreement (such notice to control the defense is hereinafter referred to as the “Defense Notice”). The failure of the Indemnified Party to notify the Indemnifying Party of such claims; provided, that the failure to so notify Claim shall not relieve the Indemnifying Party from any liability which the Indemnifying Party may have pursuant to this Article “21” of its obligations hereunder, this Agreement except to the extent that such failure to notify the Indemnifying Party is actually and materially prejudiced therebyprejudices the Indemnifying Party. The Indemnified Party shall use all reasonable efforts to assist the Indemnifying Party shall have thirty (30) days after receipt in the vigorous defense of such notice to assume the conduct Claim. All costs and control, through counsel reasonably acceptable to expenses incurred by the Indemnified Party at in defending the expense of Claim shall be paid by the Indemnifying Party. If, of the settlement or defense thereof and however, the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party desires to participate in any such settlement defense or defense through counsel chosen by such Indemnified Partysettlement, provided that the fees it may do so at its sole cost and expenses of such counsel shall be borne by such Indemnified Party and expense (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, it being understood that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimdefense). Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the The Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlementClaim. If the Indemnifying Party does not notify elect to control the defense of the Claim, within the aforesaid ten (10) day period by proper notice pursuant to Paragraph “C” of Article “24” of this Agreement, then the Indemnified Party shall be entitled to undertake, conduct and control the defense of the Claim (a failure by the Indemnifying Party to send the Defense Notice to the Indemnified Party within thirty the aforesaid ten (3010) days after day period by proper notice pursuant to Paragraph “C” of Article “24” of this Agreement shall be deemed to be an election by the receipt Indemnifying Party not to control the defense of the Indemnified Party’s notice of a claim of indemnity hereunder Claim); provided, however, that the Indemnifying Party shall be entitled, if it elects so desires, to undertake the defense thereofparticipate therein (it being understood that in such circumstances, the Indemnified Party shall have be entitled to control the right defense). Regardless of which party has undertaken to contestdefend any claim, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall notmay, except with without the prior written consent of the Indemnified Party, enter into settle, compromise or offer to settle or compromise any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or demand; provided however, that if any settlement would result in the imposition of a consent to entry order, injunction or decree which would restrict the future activity or conduct of any judgment. The Indemnifying Party and the Indemnified Party, the consent of the Indemnified Party shall cooperate with each other in all reasonable respects in connection with be a condition to any such settlement. Notwithstanding the defense foregoing provisions of any claimthis Article “21” of this Agreement, including making available records relating to such claim and furnishing, without expense as a condition to the Indemnifying Party and/or either having the right to defend the Claim, or having control over settlement as indicated in this Article “21” of this Agreement, the Indemnifying Party shall execute an agreement, in the form annexed hereto and made a part hereof as Exhibit “D”, acknowledging its counselliability for indemnification pursuant to this Article “21” of this Agreement. Whether the Indemnifying Party shall control and assume the defense of the Claim or only participate in the defense or settlement of the Claim, such employees of the Indemnified Party as may be reasonably necessary for shall give the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating Indemnifying Party and its counsel access, during normal business hours, to such claimall relevant business records and other documents, and shall permit them to consult with its employees and counsel.
Appears in 2 contracts
Samples: Confidentiality Agreement (China PharmaHub Corp.), Agreement (China PharmaHub Corp.)
Third Party Claims. If a claim by a any Indemnity Claim is based upon any claim, demand, suit or action of any third party is made against any Indemnified Partythe party seeking to be indemnified or the Purchased Assets (a “Third Party Claim”), and if such Indemnified Party intends then the party seeking to seek indemnity be indemnified, at the time it gives the other party the Notice of Claim with respect thereto under Section 15to such Third Party Claim, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that shall:
(i) Offer to the Indemnifying Party shall permit indemnifying party the Indemnified Party option to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that have the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to indemnifying party assume the defense of such action only Third Party Claim, which option shall be exercised by the indemnifying party (if the indemnifying party elects to exercise) by written notice to the extent party seeking to be indemnified within fifteen (15) days after the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense indemnifying party receives written notice of the Indemnifying Third Party unless (x) Claim. If the Indemnifying Party shall have failedindemnifying party exercises such option, within a reasonable time after having been notified by then the Indemnified Party of the existence of such claim as provided in the preceding sentenceindemnifying party shall, to at its own expense, assume the defense of such claimThird Party Claim, (y) shall upon the employment final determination thereof fully discharge at its own expense all liability of the party seeking to be indemnified with respect to such counsel has been specifically authorized Third Party Claim, and shall be entitled, in writing by its sole discretion and at its sole expense but without any liability of the Indemnifying Partyindemnified party therefore, to compromise or (z) the named parties to any settle such action (including any impleaded parties) include both such Indemnified Third Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available Claim upon terms acceptable to the Indemnified Party which are not available to indemnifying party. From the Indemnifying Party, or available to time the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party indemnifying party so assumes such defense and while such defense is reasonably contesting any such claim pursued diligently and in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party indemnifying party shall have the right to pay no further liability for attorneys’ fees or settle any such claim, provided that in such event it shall waive any right to indemnity therefor other costs of defense thereafter incurred by the Indemnifying indemnified party in connection with such Third Party for such claim unless Claim; or
(ii) In the Indemnifying Party shall have consented to such payment or settlement. If event the Indemnifying Party indemnifying party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereofof such Third Party Claim, the Indemnified Party party seeking to be indemnified shall have conduct such defense as would a reasonable and prudent person to whom no indemnity were available, shall permit the right indemnifying party (at the indemnifying party’s sole expense) to contestparticipate in (but not control) such defense, and shall not settle or compromise such Third Party Claim without the claim but indemnifying party’s consent, such consent not to be unreasonably withheld or delayed.
(iii) The provisions of this Section 7.3 of this Agreement shall not thereby waive be enforced or construed so as to invalidate or impair the protection afforded by any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable insurance policy maintained by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person either Buyer or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimSellers.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Healthier Choices Management Corp.), Asset Purchase Agreement (Healthier Choices Management Corp.)
Third Party Claims. If a claim by a third party is made against any Person entitled to indemnification pursuant to Section 8.1 hereof (an "Indemnified Party"), and if such Indemnified Party party intends to seek indemnity with respect thereto under Section 15this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (the "Indemnifying Party Party") of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty days (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewiththereof; provided, provided that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds hold such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) 30 days after the receipt of the Indemnified Party’s 's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person Person or persons Persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim.
Appears in 2 contracts
Samples: Share Sale and Contribution Agreement (Regenesis Holdings Inc), Share Sale and Contribution Agreement (Fuelnation Inc)
Third Party Claims. If a claim by a third party is made against any Indemnified Party, and if such Indemnified The obligations of an indemnifying Party intends to seek indemnity under this Article VI with respect thereto under Section 15, such Indemnified to Losses arising from claims of any Third Party shall promptly notify the Indemnifying that are subject to indemnification as provided for in Sections 6.1 or 6.2 (a “Third Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30Claim”) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne governed by such Indemnified and be contingent upon the following additional terms and conditions:
(a) Control of Defense. At its option, the indemnifying Party and (ii) the Indemnifying Party shall promptly be entitled to may assume the defense of such action only any Third Party Claim by giving written notice to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the indemnifying Party’s receipt of an Indemnification Claim Notice. The assumption of the Indemnified Party’s notice defense of a Third Party Claim by the indemnifying Party shall not be construed as an acknowledgment that the indemnifying Party is liable to indemnify any Person seeking indemnification in respect of the Third Party Claim, nor shall it constitute a waiver by the indemnifying Party of any defenses it may assert against any such claim of indemnity hereunder that it elects to undertake for indemnification. Upon assuming the defense thereofof a Third Party Claim, the indemnifying Party may appoint as lead counsel in the defense of the Third Party Claim any legal counsel selected by the indemnifying Party. In the event the indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall have immediately deliver to the right to contestindemnifying Party all original notices and documents (including court papers) received by any indemnified Party in connection with the Third Party Claim. Should the indemnifying Party assume the defense of a Third Party Claim, settle or compromise the claim but indemnifying Party shall not thereby waive be liable to the Indemnified Party or any right other indemnified Party for any legal expenses subsequently incurred by such indemnified Party in connection with the analysis, defense or settlement of the Third Party Claim. In the event that it is ultimately determined that the indemnifying Party is not obligated to indemnity therefor pursuant to this Agreement. The Indemnifying indemnify, defend or hold harmless an indemnified Party from and against the Third Party Claim, the Indemnified Party shall not, except with reimburse the consent indemnifying Party for any and all costs and expenses (including attorneys’ fees and costs of suit) and any Losses incurred by the indemnifying Party in its defense of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Third Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability Claim with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimindemnified Party.
Appears in 2 contracts
Samples: Exclusive License and Distribution Agreement (MITU Resources Inc.), Exclusive License and Distribution Agreement (MITU Resources Inc.)
Third Party Claims. If a claim by a The obligations and liabilities of an Indemnifying Party under this Article V with respect to Liabilities arising from claims of any third party is made against any Indemnified Party, that are subject to the indemnification provisions provided for in this Article V (“Third Party Claims”) shall be governed by and if such Indemnified Party intends contingent upon the following additional terms and conditions. The Indemnitee at the time it gives a Notice of Claim to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify Third Party Claim shall not relieve advise the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party shall be permitted, at its option, to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice reasonably satisfactory to the Indemnitee if (i) it gives written notice of its intention to do so to the Indemnitee within 20 days of its receipt of the Notice of Claim; (ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief; (iii) settlement of, or an adverse judgment with respect to, the Third Party Claim is actually not, in the good faith judgment of the Indemnitee, likely to establish a precedential custom or practice materially adverse to the continuing business interests or the reputation of the Indemnitee; and materially prejudiced thereby. The (iv) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. In the event the Indemnifying Party exercises its right to undertake the defense against any such Third Party Claim as provided above, the Indemnitee shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses and Information in its possession or under its control relating thereto as is reasonably required by the Indemnifying Party, and the Indemnitee may participate by its own counsel and at the cost and expense of the Indemnifying Party in defense of such Third Party Claim; provided, however, that if the defendants in any Action shall include both the Indemnitee and the Indemnifying Party and such Indemnitee shall have thirty (30) days after receipt concluded in good faith that counsel selected by the Indemnifying Party has a conflict of interest because of the availability of different or additional defenses to such notice Indemnitee, such Indemnitee shall have the right to assume the conduct and control, through select separate counsel reasonably acceptable to the Indemnified Indemnifying Party to participate in the defense of such Action on its behalf, at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the such Indemnifying Party shall not not, in connection with any one such Action or separate but substantially similar or related Actions, be entitled to assume control of such defense and shall pay liable for the reasonable fees and expenses of counsel retained by the Indemnified Party if more than one separate firm of attorneys (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties addition to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claimlocal counsel). Notwithstanding the foregoing, the Indemnified Party shall have Indemnitee, during the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by period the Indemnifying Party for is determining whether to elect to assume the defense of a matter covered by this Section 5.04(b), may take such claim unless reasonable actions, at the Indemnifying Party shall have consented Party’s expense, as it deems necessary to preserve any and all rights with respect to the matter, without such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt actions being construed as a waiver of the Indemnified PartyIndemnitee’s notice of a claim of indemnity hereunder that it elects rights to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor and indemnification pursuant to this Agreement. The Indemnifying In the event the Indemnitee is, directly or indirectly, conducting the defense against any such Third Party shall notClaim, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other the Indemnitee in such defense and make available to it all reasonable respects such witnesses and Information in connection with its possession or under its control relating thereto as is reasonably required by the Indemnitee and the Indemnifying Party may participate by its own counsel and at its own expense in the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Third Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimClaim.
Appears in 2 contracts
Samples: Separation Agreement (CIPAR Inc.), Separation Agreement (Cohesant Technologies Inc)
Third Party Claims. (a) If any third party shall notify any Party (the “Indemnified Party”) with respect to any matter (a “Third Party Claim”) which may give rise to a claim by a third party is made for indemnification against any Indemnified other Party (the “Indemnifying Party”) under this Article 10, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such then the Indemnified Party shall promptly notify the each Indemnifying Party of such claimsthereof in writing; provided, however, that no delay on the failure to so notify part of the Indemnified Party in notifying any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is prejudiced.
(b) Any Indemnifying Party will have the right to defend the Indemnified Party against the Third Party Claim with counsel of its obligations hereunder, except choice reasonably satisfactory to the extent Indemnified Party so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third Party Claim that the Indemnifying Party is actually will indemnify the Indemnified Party from and materially prejudiced thereby. The against the entirety of any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim, (ii) the Indemnifying Party shall have thirty (30) days after receipt of such notice to assume provides the conduct and control, through counsel Indemnified Party with evidence reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled will have the financial resources to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief defend against the Indemnified Party; Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Indemnified Third Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party Claim involves only money damages and the Indemnified Party; does not seek an injunction or other equitable relief, (iv) upon petition by settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, the appropriate court rules that the Indemnifying Party failed likely to establish a precedential custom or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be practice adverse to the continuing business interests of the Indemnified Party. , and (v) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently.
(c) So long as the Indemnifying Party is reasonably contesting any such claim conducting the defense of the Third Party Claim in good faithaccordance with Section 10.05(b) above, (i) the Indemnified Party shall not pay or settle any such claim. Notwithstanding may retain separate co-counsel at its sole cost and expense and participate in the foregoingdefense of the Third Party Claim, (ii) the Indemnified Party shall have will not consent to the right entry of any judgment or enter into any settlement with respect to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Third Party Claim without the prior written consent of the Indemnifying Party for such claim unless (not to be withheld unreasonably), and (iii) the Indemnifying Party shall have consented will not consent to such payment the entry of any judgment or settlement. If enter into any settlement with respect to the Indemnifying Third Party does not notify Claim without the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the prior written consent of the Indemnified PartyParty (not to be withheld unreasonably).
(d) In the event any of the conditions in Section 10.05(b) above is or becomes unsatisfied, however, (i) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of to, the Third Party Claim in any judgment. The Indemnifying Party manner it reasonably may deem appropriate (and the Indemnified Party shall cooperate with each other in all reasonable respects need not consult with, or obtain any consent from, any Indemnifying Party in connection with the defense of any claimtherewith), including making available records relating to such claim and furnishing, without expense to (ii) the Indemnifying Party and/or its counsel, such employees of will reimburse the Indemnified Party as may be reasonably necessary promptly and periodically for the preparation costs of defending against the defense of Third Party Claim (including reasonable attorneys’ fees and expenses), and (iii) the Indemnifying Party will remain responsible for any such claim Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or for testimony as witnesses caused by the Third Party Claim to the fullest extent provided in any proceeding relating to such claimthis Article 10.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Alion Science & Technology Corp), Stock Purchase Agreement (Alion Science & Technology Corp)
Third Party Claims. If The obligations and liabilities of a claim party from which indemnification is sought (an "Indemnifying Party") by a person or entity seeking indemnification (an "Indemnified Party") under this Section 4.10 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following conditions:
4.10.3.1 The Indemnified Party shall give written notice to the Indemnifying Party of the nature of the assertion of liability by a third party is made against any Indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall the amount thereof promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense learns of the Indemnifying Partysuch assertion. The foregoing notwithstanding, failure of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the an Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel comply with its obligations under this Section 4.10.3 shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled affect its right to assume the defense of such action indemnity only to the extent the Indemnifying Party acknowledges its indemnity obligation demonstrates actual damage caused by such failure.
4.10.3.2 If any claim, action, suit or proceeding (an "Action") is brought by a third party against an Indemnified Party, the Action shall be defended by the Indemnifying Party and assumes and holds such defense shall include all appeals or reviews which counsel for the Indemnifying Party shall deem appropriate. Until the Indemnifying Party shall have assumed the defense of any such Action, or if the Indemnified Party harmless shall have reasonably concluded that there are likely to be defenses available to the Indemnified Party that are different from and against or in addition to those available to the full amount of any Loss resulting therefrom; provided, further, that Indemnifying Party (in which case the Indemnifying Party shall not be entitled to assume control the defense of such defense Action), all legal or other expenses reasonably incurred by the Indemnified Party shall be borne by the Indemnifying Party and shall pay be repaid to the fees and expenses of counsel retained Indemnifying Party by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules it is finally determined that the Indemnifying Party failed was not liable or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have responsible for the right to employ separate counsel in claim underlying the Action.
4.10.3.3 In any such action or claim Action initiated by a third party and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing defended by the Indemnifying Party, or (za) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claimbe represented by advisory counsel and accountants, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless at its own expense, (b) the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify keep the Indemnified Party within thirty (30) days after fully informed as to the receipt status of such Action at all stages thereof, whether or not the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereofParty is represented by its own counsel, (c) the Indemnified Party shall have make available to the right Indemnifying Party, and its attorneys and accountants, all books and records of the Indemnified Party relating to contestsuch Action, settle or compromise and (d) the claim but parties shall not thereby waive render to each other such assistance (including, without limitation, as contemplated by Section 4.6) as may be reasonably required for the proper and adequate defense of such Action.
4.10.3.4 In any right to indemnity therefor pursuant to this Agreement. The Action initiated by a third party and defended by the Indemnifying Party, the Indemnifying Party shall not, except with not make any settlement of any claim without the written consent of the Indemnified Party, enter into any settlement that is which consent shall not entirely indemnifiable by be unreasonably withheld or delayed. Without limiting the Indemnifying Party pursuant generality of the foregoing, it shall not be deemed unreasonable to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or withhold consent to entry of any judgment. The Indemnifying Party and a settlement involving injunctive or other equitable relief against the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claimor its assets, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimbusiness.
Appears in 2 contracts
Samples: Acquisition Agreement (Caci International Inc /De/), Acquisition Agreement (Caci International Inc /De/)
Third Party Claims. If All claims for indemnification made under this Agreement resulting from, related to or arising out of a third-party claim against an Indemnified Party shall be made in accordance with the following procedures. An Indemnified Party shall give prompt written notification to the Indemnifying Party of the commencement of any action, suit or proceeding relating to a third-party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a third party. Such notification shall include a description in reasonable detail (to the extent known by the Indemnified Party) of the facts constituting the basis for such third-party is made against any claim and the amount of the Damages claimed. Within 30 days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party assume control of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictmentsuit, allegation proceeding or investigation; (ii) the claim seeks an injunction or equitable relief against with counsel reasonably satisfactory to the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt assume control of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereofsuch defense, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreementcontrol such defense. The Indemnifying Party shall notnot controlling such defense may participate therein at its own expense; provided, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by if the Indemnifying Party pursuant to this Agreement assumes control of such defense and does not include as an unconditional term thereof the giving by Indemnified Party reasonably concludes, based on advice from counsel, that the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate have conflicting interests with each other in all respect to such action, suit, proceeding or claim, the reasonable respects fees and expenses of counsel to the Indemnified Party solely in connection with the defense therewith shall be considered “Damages” for purposes of any claimthis Agreement; provided, including making available records relating to such claim and furnishinghowever, without expense to that in no event shall the Indemnifying Party and/or be responsible for the fees and expenses of more than one counsel for all Indemnified Parties. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party; provided, that in the event the Indemnified Party agrees to any such settlement without the Indemnifying Party’s consent, the Indemnified Party shall waive its counselright to indemnity (but such waiver shall not occur if the Indemnifying Party had unreasonably withheld its consent to such settlement). The Indemnifying Party shall not agree to any settlement of such action, such employees suit, proceeding or claim that does not include a complete release of the Indemnified Party as may be reasonably necessary for from all liability with respect thereto or that imposes any liability or obligation on the preparation Indemnified Party without the prior written consent of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimIndemnified Party.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (I Many Inc)
Third Party Claims. If a claim The obligation of an indemnifying party to ------------------ indemnify another party to this Agreement under the provisions of this Article VI with respect to claims resulting from the assertion of liability by those not parties to this Agreement (including governmental claims for penalties, fines and assessments) shall be subject to the following terms and conditions:
(i) The indemnified party shall give prompt written notice to the indemnifying party of any assertion of liability by a third party is made against any Indemnified Partywhich might give rise to a claim for indemnification based on the foregoing provisions of this Article VI, which notice shall state the nature and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15basis of the assertion and the amount thereof, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent known, provided, however, that no delay on the Indemnifying Party part of the indemnified party in giving notice shall relieve the indemnifying party of any obligation to indemnify unless (and then solely to the extent that) the indemnifying party is actually and materially prejudiced thereby. The Indemnifying Party by such delay;
(ii) If any action, suit or proceeding (a "Legal Action") is brought against an indemnified party with respect to which the indemnifying party may have liability under the foregoing provisions of this Article VI, the Legal Action shall be defended (such defense to include all proceedings for appeal or review which counsel for the indemnified party shall deem appropriate) by the indemnifying party;
(iii) Notwithstanding the provisions of the previous subsection of this Agreement, until the indemnifying party shall have thirty assumed the defense of any such Legal Action, the defense shall be handled by the indemnified party. Furthermore, (30a) days after receipt of such notice if the indemnified party shall have reasonably concluded that there are likely to assume be defenses available to the conduct and control, through counsel indemnified party that are different from or in addition to those available to the indemnifying party; (b) if the indemnifying party fails to provide the indemnified party with evidence reasonably acceptable to the Indemnified Party at indemnified party that the expense indemnifying party has sufficient financial resources to defend and fulfill its indemnification obligation with respect to the Legal Action; (c) if the Legal Action involves other than money damages and seeks injunctive or other equitable relief; or (d) if a judgment against the indemnified party in the Legal Action will, in the good faith opinion of the Indemnifying Partyindemnified party, establish a custom or precedent which will be materially adverse to the best interest of its continuing business, the settlement or defense thereof and the Indemnified Party indemnifying party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly not be entitled to assume the defense of such action only to the extent Legal Action and the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against defense shall be handled by the full amount indemnified party. If the defense of any Loss resulting therefrom; providedthe Legal Action is handled by the indemnified party under the provisions of this subsection, further, that the Indemnifying Party shall not be entitled to assume control of such defense and indemnifying party shall pay the fees all legal and other expenses of counsel retained reasonably incurred by the Indemnified Party if (i) the claim for indemnification relates to or arises indemnified party in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or conducting such defense;
(iv) upon petition In any Legal Action initiated by a third party and defended by the Indemnified Party, indemnifying party (a) the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party indemnified party shall have the right to employ separate be represented by advisory counsel in any and accountants, at its own expense, (b) the indemnifying party shall keep the indemnified party fully informed as to the status of such action or claim and to participate in the defense Legal Action at all stages thereof, but whether or not the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless indemnified party is represented by its own counsel, (xc) the Indemnifying Party indemnifying party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses make available to the Indemnified Party which are not available to the Indemnifying Partyindemnified party, or available to the Indemnifying Party the assertion of which would be adverse to the interests and its attorneys, accountants and other representatives, all books and records of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records indemnifying party relating to such claim Legal Action and furnishing, without expense (d) the parties shall render to the Indemnifying Party and/or its counsel, each other such employees of the Indemnified Party assistance as may be reasonably necessary for required in order to ensure the preparation proper and adequate defense of such Legal Action; and
(v) In any Legal Action initiated by a third party and defended by the indemnifying party, the indemnifying party shall not make any settlement of any claim without the written consent of the defense indemnified party, which consent shall not be unreasonably withheld. Without limiting the generality of any such claim the foregoing, it shall not be deemed unreasonable to withhold consent to a settlement involving injunctive or for testimony as witnesses in any proceeding relating other equitable relief against the indemnified party or its assets, employees or business, or relief which the indemnified party reasonably believes could establish a custom or precedent which will be materially adverse to such claimthe best interests of its continuing business.
Appears in 2 contracts
Samples: Capital Contribution Agreement (Styrochem International LTD), Capital Contribution Agreement (Styrochem International LTD)
Third Party Claims. If a claim (a) Promptly after the receipt by any Person entitled to indemnification pursuant to this Article XII (the “Indemnified Party”) of notice of the commencement of any Action involving a third party is made against any Indemnified Party(such Action, and if such Indemnified a “Third Party intends to seek indemnity with respect thereto under Section 15Claim”), such Indemnified Party shall promptly notify shall, if a claim with respect thereto is to be made against any party or parties obligated to provide indemnification pursuant to this Article XII (the “Indemnifying Party”), give such Indemnifying Party written notice of such claimsThird Party Claim in reasonable detail in light of the circumstances then known to such Indemnified Party; provided, provided that the failure of the Indemnified Party to so notify provide such notice shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that such failure to give notice shall prejudice any defense or claim available to the Indemnifying Party is actually and materially prejudiced thereby. Party.
(b) The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only any Third Party Claim with counsel reasonably satisfactory to the extent Indemnified Party, at the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefromParty’s sole expense; provided, further, provided that the Indemnifying Party shall not be entitled to assume or continue control of such the defense and shall pay the fees and expenses of counsel retained by the Indemnified any Third Party Claim if (i) the claim for indemnification Third Party Claim relates to or arises in connection with any criminal proceedingAction, action, indictment, allegation or investigation; (ii) the claim Third Party Claim seeks an injunction or equitable relief against any Indemnified Party, (iii) the Third Party Claim has or would reasonably be expected to result in Losses in excess of the amounts available for indemnification pursuant to Section 12.5, (iv) the Third Party Claim would reasonably be expected to have a material adverse effect on the Indemnified Party; ’s business or relates to its clients, vendors or other service providers, (v) the Indemnifying Party has failed or is failing to defend in good faith the Third Party Claim, or (vi) the Indemnifying Party has not acknowledged that such Third Party Claim is subject to indemnification pursuant to this Article XII.
(c) If the Indemnifying Party assumes the defense of any Third Party Claim, (i) it shall not settle the Third Party Claim unless (A) the settlement does not entail any admission of liability on the part of any Indemnified Party, and (B) the settlement includes an unconditional release of each Buyer Indemnified Party or Seller Indemnified Party, as applicable, reasonably satisfactory to the Indemnified Party, from all Losses with respect to such Third Party Claim, (ii) it shall indemnify and hold the Indemnified Party harmless from and against any and all Losses caused by or arising out of any settlement or judgment of such claim and may not claim that it does not have an indemnification obligation with respect thereto, and (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and (but not the obligation) to participate in the defense thereofof such Third Party Claim and to employ, but at its own expense, counsel separate from counsel employed by the fees Indemnifying Party; provided that the fees, costs and expenses of such counsel shall not be at the expense of the Indemnifying Party unless if the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them.
(xd) The Indemnified Party shall not settle any Third Party Claim if the Indemnifying Party shall have failed, within any obligation as a reasonable time after having been notified by the Indemnified Party of the existence result of such claim as provided in the preceding sentence, settlement (whether monetary or otherwise) unless such settlement is consented to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, such consent not to be unreasonably withheld or delayed.
(ze) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the named parties defense or prosecution of any Third Party Claim. Any consent to any such action (including any impleaded parties) include both such be given by the Buyer Indemnified Party and Parties under this Section 12.7 shall be given by the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests Buyer acting on behalf of the Buyer Indemnified Party. So long as the Indemnifying Party is reasonably contesting Parties and any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right consent to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor be given by the Indemnifying Party for such claim unless Seller Indemnified Parties under this Section 12.7 shall be given by the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt Representative acting on behalf of the Seller Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimParties.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Evercore Partners Inc.)
Third Party Claims. If Promptly after the receipt by Seller or Buyer of notice of any claim, action, suit or proceeding by any person or entity who is not a claim by a third party to this Agreement (collectively, an “Action”) which is made against any subject to indemnification hereunder, such party (the “Indemnified Party, and if ”) shall give written notice of such Action to the party from whom indemnification is claimed (the “Indemnifying Party”). The Indemnified Party intends Party’s failure to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly so notify the Indemnifying Party of any such claims; provided, that the failure to so notify matter shall not relieve release the Indemnifying Party of Party, in whole or in part, from its obligations hereunderto indemnify under this Section 5, except to the extent that the Indemnified Party’s failure to so notify actually prejudices the Indemnifying Party is actually and materially prejudiced therebyParty’s ability to defend against such Action. The Indemnifying Indemnified Party shall have thirty (30) days after receipt of such notice to assume the conduct and controlbe entitled, through counsel reasonably acceptable to the Indemnified Party at the sole expense and liability of the Indemnifying Party, to exercise full control of the defense, compromise or settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) of any such Action unless the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that within a reasonable time after the fees and expenses giving of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition notice by the Indemnified Party, shall: (i) admit in writing to the appropriate court rules that Indemnified Party, the Indemnifying Party’s liability to the Indemnified Party for all or a significant portion of such Action under the terms of this Section 5; (ii) notify the Indemnified Party in writing of the Indemnifying Party’s intention to assume the defense thereof; and (iii) retain legal counsel reasonably satisfactory to the Indemnified Party to conduct the defense of such Action. The Indemnified Party and the Indemnifying Party failed shall cooperate with the party assuming the defense, compromise or is failing to vigorously prosecute or defend settlement of any such claimAction in accordance herewith in any manner that such party reasonably may request. Any If the Indemnifying Party so assumes the defense of any such Action, the Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in (but not control) the defense defense, compromise, or settlement thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Indemnified Party unless (xA) the Indemnifying Party shall have failedhas agreed to pay such fees and expenses, within a reasonable time after having been notified by (B) any relief other than the payment of money damages is sought against the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, or (yC) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such its counsel that there may be one or more legal defenses available to the Indemnified Party it which are not different from or additional to those available to the Indemnifying Party, or available to and in any such case the fees and expenses of such separate counsel shall be borne by the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the No Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise or consent to entry of any judgment with respect to any such Action for which it is entitled to indemnification hereunder without the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreementprior written consent of the Indemnifying Party. The No Indemnifying Party shall notshall, except with without the written consent of the Indemnified Party, enter into settle or compromise or consent to entry of any settlement that judgment with respect to any such Action in which any relief is not entirely indemnifiable by the Indemnifying sought against any Indemnified Party pursuant to this Agreement and does not include or any Action unless such settlement, compromise or consent includes as an unconditional term thereof the giving by the person claimant, petitioner or persons asserting plaintiff, as applicable, to such claim to all Indemnified Parties Party of an unconditional a release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimAction.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Idt Corp), Securities Purchase Agreement (Microsoft Corp)
Third Party Claims. If (a) In connection with any indemnification claim arising out of a claim or legal Proceeding (a “Third Party Claim”) by a any third party is made against any Indemnified PartyPerson, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party will be entitled to control the defense of any such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through claim with counsel reasonably acceptable to the Indemnified Party at the Indemnifying Party’s own cost and expense, including the cost and expense of the Indemnifying Partyreasonable attorneys’ fees and disbursements in connection with such defense, of the settlement or defense thereof and by providing written notice to the Indemnified Party shall cooperate with it in connection therewithno later than five business days following its receipt of the Claim Notice; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, furtherhowever, that the Indemnifying Party shall may not be entitled to assume control of the defense of a suit or proceeding (a) involving criminal liability, or (b) to the extent such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to suit or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim proceeding seeks an injunction or equitable relief against the Indemnified Party; (iii) . In the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules event that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any assumes control of the defense, the Indemnified Party shall have may participate at its own expense. The party controlling such defense will keep the right to employ separate counsel in any other party reasonably advised of the status of such action suit or claim proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified will consider in good faith recommendations made by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named non-controlling party with respect thereto. The parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim will otherwise cooperate in good faith, the Indemnified Party shall not pay or settle any faith in connection with such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty defense.
(30b) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall notwill be entitled to agree to a settlement of, except or the stipulation of any Judgment arising from, any such Third Party Claim, with the consent of the Indemnified Party, enter into any settlement which consent will not be unreasonably withheld or delayed; provided, however, that is not entirely indemnifiable by no such consent will be required from the Indemnified Party if (A) the Indemnifying Party pursuant pays or causes to this Agreement and does not include be paid all Losses arising out of such settlement or Judgment concurrently with the effectiveness thereof (as an unconditional term thereof the giving well as all other Losses theretofore incurred by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each which then remain unpaid or unreimbursed), (B) in the case of a settlement, the settlement is conditioned upon a complete release by the claimant of the Indemnified Party, and (C) such settlement or Judgment does not impose an injunction or other in all reasonable respects in connection with equitable relief upon the defense Indemnified Party, require the Encumbrance of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees asset of the Indemnified Party as may be reasonably necessary for the preparation or impose any restriction upon its conduct of the defense of any such claim business or for testimony as witnesses in any proceeding relating to such claimotherwise materially adversely affect its business.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Selectica Inc)
Third Party Claims. If a claim The Indemnifying Party may assume the defense of any Third Party Claim with counsel selected by a third party is made against any Indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen Person by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available providing written notice to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party Person within thirty (30) days after receiving the receipt applicable Claim Notice. If the Indemnifying Party fails to assume the defense of a Third Party Claim by providing such written notice, the Indemnifying Party shall be liable for the fees and expenses of one counsel selected by the Indemnified Person and reasonably acceptable to the Indemnifying Party’s notice , except that the Indemnifying Party shall retain the right to substitute counsel of its selection and reasonably acceptable to the Indemnified Person. If the Indemnifying Party elects to assume the defense of a claim of indemnity hereunder that it elects to undertake the defense thereofThird Party Claim, the Indemnified Party Person shall have the right to contestparticipate in the defense thereof and to employ counsel, settle or compromise at its own expense, separate from the claim but counsel employed by the Indemnifying Party, it being agreed, subject to the following sentence, that the Indemnifying Party shall control such defense, and the Indemnifying Party shall not thereby waive be liable to the Indemnified Person for any legal or other expenses incurred by the Indemnified Person in connection with the defense thereof. Notwithstanding the preceding sentence, if the named parties (including any impleaded parties) to an Action in connection therewith include both an Indemnified Person and the Indemnifying Party (or any of its Affiliates) and the Indemnified Person reasonably concludes that there may be legal defenses available to it which are different from or additional to those available to the Indemnifying Party (or its Affiliates), the Indemnifying Party shall be liable for the fees and expenses of one separate counsel selected by the Indemnified Person to represent the Indemnified Person in connection therewith and, if the Indemnified Person notifies the Indemnifying Party thereof in writing, the Indemnifying Party shall not have the right to indemnity therefor pursuant assume the defense thereof. If the Indemnifying Party elects to this Agreementdefend or prosecute a Third Party Claim, the Indemnified Person shall fully cooperate in the defense or prosecution thereof, and such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making the Indemnified Person’s Agents available on a mutually convenient basis to provide additional information and explanation of any such materials. The Indemnifying Party shall notnot effect, except with without the prior written consent of the Indemnified PartyPerson, enter into any settlement that settlement, compromise or discharge of a Third Party Claim unless the same (x) involves an unconditional release of the indemnified claim against the Indemnified Person in form reasonably satisfactory to the Indemnified Person, (y) does not include any statement or admission as to fault, culpability, or failure to act by or on behalf of any Indemnified Person and (z) is not entirely indemnifiable limited to the payment of monetary damages and/or to action solely undertaken by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentParty. The Indemnifying Party and shall not be liable for any settlement, compromise or discharge of a Third Party Claim effected without its prior written consent, but if settled, compromised or discharged with its written consent or if there is a final Order for the Indemnified plaintiff in any such Third Party shall cooperate with each other in all reasonable respects in connection with the defense of any claimClaim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of shall indemnify the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses Person in any proceeding relating to such claimconnection therewith.
Appears in 2 contracts
Samples: License Agreement (Biosante Pharmaceuticals Inc), License Agreement (Biosante Pharmaceuticals Inc)
Third Party Claims. If (a) With respect to any Third Party Claims or any audit or administrative or judicial proceeding for which an Indemnified Party may have a claim by a third party is made against any Indemnified Partyfor indemnification, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice the right, at its expense and at its election, to assume control of the conduct negotiation, settlement and control, defense of the Third Party Claim through counsel of its choice, which counsel shall be reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that so long as (i) the Indemnifying Party shall permit conducts the Indemnified defense of the Third Party to participate in such settlement or defense through counsel chosen by such Indemnified PartyClaim actively and diligently, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume provides the defense of such action only to the extent Indemnified Party with reasonable evidence that the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and will have the financial resources to defend against the full amount of any Loss resulting therefromThird Party Claim and fulfill its indemnification obligations hereunder; provided, furtherhowever, that if the Indemnifying Party is Seller, the Indemnifying Party shall not be entitled have the right to assume such control in respect of Third Party Claims (x) asserted directly by or on behalf of a Person that is a supplier or customer of the Business that is not then a supplier or customer of Seller or any of its Affiliates as of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if date, (iy) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks that seek an injunction or other equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (ivz) upon petition by after such time as Seller has indemnified Buyer Indemnified Parties for Buyer Warranty Losses in an aggregate amount equal to the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimapplicable limitation set forth in Section 11.2(b)(iii). Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense The election of the Indemnifying Party unless to assume such control shall be made within thirty (x30) days of receipt of notice of the Third Party Claim, failing which the Indemnifying Party shall be deemed to have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, elected not to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and control. If the Indemnifying Party and elects to assume such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoingcontrol, the Indemnified Party shall have the right to pay be informed and consulted with respect to the negotiation, settlement or settle defenses of such Third Party Claim and to retain counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the named parties to any such claim, provided that in such event it shall waive any right to indemnity therefor by Legal Proceeding include both the Indemnifying Party for and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to an actual or potential conflict of interest between them (such claim unless as the availability of different defenses), in which case the Indemnifying Party shall bear the reasonable costs and expenses of a single counsel to the Indemnified Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Third Party Claim diligently or within a reasonable period of time, subject to Section 11.7(b), the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party shall have consented the right to be informed and consulted with respect to the negotiation, settlement or defenses of such payment or settlementThird Party Claim. If the Indemnifying Party does not notify assume or retain control of the negotiation, settlement and defense of a Third Party Claim, the Indemnified Party within thirty (30) days after shall control the receipt negotiation, settlement and defense of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereofsuch Third Party Claim, but in such case, the Indemnified Indemnifying Party shall have the right to contestbe informed and consulted with respect to the negotiation, settle settlement or compromise defenses of such Third Party Claim and to retain counsel to act on its behalf at its sole cost and expense.
(b) Whether or not the claim but shall not thereby waive Indemnifying Party assumes control of the negotiation, settlement or defense of any right Third Party Claim, unless such settlement provides for no fault on the part of the Indemnified Party and provides for a full release, in customary form, of the Indemnified Party, and there are no obligations of the Indemnified Party under such settlement other than monetary damages or other monetary payments to indemnity therefor pursuant to this Agreement. The be paid for by the Indemnifying Party, the Indemnifying Party shall not, except with not settle any Third Party Claim without the written consent of the Indemnified Party, enter into any settlement that is which consent shall not entirely indemnifiable by be unreasonably withheld, conditioned or delayed. Notwithstanding anything herein to the contrary, if (i) the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof assume or retain control of the giving by negotiation, settlement and defense of a Third Party Claim and (ii) either of clauses (x) or (y) of the person or persons asserting such claim to all Indemnified Parties proviso set forth in the first sentence of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and Section 11.7(a) applies, the Indemnified Party shall not settle any Third Party Claim without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed.
(c) The Indemnified Party and the Indemnifying Party shall cooperate fully with each other in all reasonable respects in connection with the defense respect to Third Party Claims and, regardless of any claimwhich party has control thereof as provided for herein, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be shall keep each other reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimadvised with respect thereto.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Constellation Brands, Inc.), Asset Purchase Agreement (Constellation Brands, Inc.)
Third Party Claims. If a claim by a third party is made against any an Indemnified PartyParty hereunder, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15this Article X, such Indemnified Party shall will promptly notify Clorox, in the case of a P&G Indemnified Party, or P&G, in the case of a Clorox Indemnified Party (such person to be notified, the “Indemnifying Party Party”) in writing of such claims; providedclaims setting forth such claims in reasonable detail, provided that the failure of such Indemnified Party to so notify shall give prompt notice as provided herein will not relieve the Indemnifying Party of any of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced therebyby such failure. The Indemnifying Party shall will have thirty twenty (3020) days after receipt of such notice to assume the conduct and controlundertake, through counsel reasonably acceptable of its own choosing, subject to the reasonable approval of such Indemnified Party at the expense of the Indemnifying Party, of and at its own expense, the settlement or defense thereof thereof, and the Indemnified Party shall will cooperate with it in connection therewith; provided, however, that (i) the Indemnifying Party shall permit the Indemnified Party to may participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall will be borne by such Indemnified Party. If the Indemnifying Party will assume the defense of a claim, it will not settle such claim without the prior written consent of the Indemnified Party, (a) unless such settlement includes as an unconditional term thereof the giving by the claimant of a release of the Indemnified Party from all Liability with respect to such claim or (b) if such settlement involves the imposition of equitable remedies or the imposition of any material obligations on such Indemnified Party other than financial obligations for which such Indemnified Party will be indemnified hereunder. If the Indemnifying Party will assume the defense of a claim, the fees of any separate counsel retained by the Indemnified Party will be borne by such Indemnified Party and unless there exists a conflict between them as to their respective legal defenses (ii) other than one that is of a monetary nature), in which case the Indemnifying Indemnified Party shall promptly will be entitled to assume retain separate counsel, the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not which will be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing reimbursed by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty twenty (3020) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall will have the right to contest, settle or compromise the claim but shall will not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with indemnification provisions set forth in this Article X are the consent sole and exclusive means of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties recovery of an unconditional release from all liability money damages with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claimmatters covered herein, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary except for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimfraud.
Appears in 2 contracts
Samples: Joint Venture Agreement (Clorox Co /De/), Joint Venture Agreement (Clorox Co /De/)
Third Party Claims. If a claim any action at law or suit in equity is instituted by or against a third party is made against with respect to which any Buyer Indemnified Party or Seller Indemnified Party (the “Indemnified Party, and if such Indemnified Party intends ”) believes is reasonably likely to seek indemnity with respect thereto result in Damages under Section 15this Article 9, such Indemnified Party shall promptly notify the other Party (the “Indemnifying Party Party”) of such claimsaction or suit; provided, provided that the any delay or failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, hereunder except to the extent that the Indemnifying Party is actually and materially prejudiced therebyby such delay or failure. The Indemnifying Party shall, promptly and in no event later than [*] after receipt of the notice, notify such Indemnified Party whether [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Indemnifying Party elects to conduct and control such action or suit, but only after confirming in writing to such Indemnified Party that it accepts responsibility to indemnify such Indemnified Party for all Damages arising from such action or suit. If Indemnifying Party provides the foregoing notice, Indemnifying Party shall have thirty (30) days after receipt of such notice the right to assume the conduct and control, through at its sole expense and with counsel of its choice (which counsel must be reasonably acceptable satisfactory to the such Indemnified Party at the expense of the Indemnifying Party), of the settlement such action or defense thereof suit, and the such Indemnified Party shall reasonably cooperate with it in connection therewith; provided, provided that (i) the Indemnifying Party shall permit not settle such action or suit without the prior consent of such Indemnified Party (not to be unreasonably withheld, conditioned or delayed), unless the third-party claimant and Indemnifying Party provide to such Indemnified Party an unqualified release from all liability in respect of such action or suit and such settlement, compromise or judgment does not involve any nonmonetary penalty or admission of fault or liability on the part of such Indemnified Party or its Affiliates. Such Indemnified Party may participate in the defense of such settlement action or defense through suit that is defended by Indemnifying Party with counsel chosen by such Indemnified Partyof its choice; provided, provided however, that the fees and expenses of such Indemnified Party’s counsel shall be borne paid by such Indemnified Party unless (i) Indemnifying Party has agreed in writing to pay such fees and expenses or (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have reasonably determined based on the right to employ separate advice of counsel in any such action that a conflict or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the potential conflict exists between Indemnifying Party and such Indemnified Party shall have been advised in writing by that would make such counsel that separate representation advisable or there may be are one or more factual or legal defenses available to the such Indemnified Party which that are not different or in addition to those that are available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Biomarin Pharmaceutical Inc)
Third Party Claims. If a claim by a third party is made against any Indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. (a) The Indemnifying Party shall have thirty (30) days after receipt the right, at its expense, to participate in or assume control of such notice to assume the conduct negotiation, settlement or defence of any Third Party Claim and if the Indemnifying Party assumes control, through counsel reasonably acceptable to it shall reimburse the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests all of the Indemnified Party. So long as ’s out-of-pocket expenses prior to the time the Indemnifying Party is reasonably contesting any assumed control. If the Indemnifying Party elects to assume such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoingcontrol, the Indemnified Party shall have the right to pay participate in the negotiation, settlement or settle any defence of such claimThird Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to actual or potential differing interests between them (such as the availability of different defences).
(b) An Indemnifying Party shall not have the rights referred to in Section 8.10(a) above, unless the Indemnifying Party has paid to the Indemnified Party the amount required pursuant to Section 8.6(d), if any.
(c) If the Indemnifying Party, having elected to assume such event it control, thereafter fails to defend the Third Party Claim within a reasonable time, the Indemnified Party shall waive be entitled to assume such control.
(d) If any right Third Party Claim is of a nature such that the Indemnified Party is required by applicable Law to indemnity therefor incur losses or make a payment to any person (a “Third Party”) with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may incur such Losses or make such payment and the Indemnifying Party shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under such Third Party Claim, as finally determined, is less than the amount that was paid by the Indemnifying Party for such claim unless to the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify Indemnified Party, the Indemnified Party within thirty (30) days shall, forthwith after the receipt of the difference from the Third Party, pay the amount of such difference, together with any interest thereon paid by the Third Party to the Indemnified Party’s notice , to the Indemnifying Party. In addition, the Indemnifying Party shall post all security required by any court, regulatory body or other authority having jurisdiction, including without limitation, for purposes of a claim enabling the Indemnifying Party to contest any Third Party Claim.
(e) If the Indemnifying Party fails to assume control of indemnity hereunder that it elects to undertake the defense thereofdefence of any Third Party Claim or defaults in respect of any of its obligations under this Section with respect thereto, the Indemnified Party shall have the exclusive right to contest, contest the amount claimed and may settle or compromise and pay the claim but shall not thereby waive any right same on 14 days’ prior written notice to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnifying Party shall thereupon be deemed to have agreed that such settlement is reasonable and may be agreed to by the Indemnified Party and all other persons liable in respect of the Third Party Claim unless within such 14-day period the Indemnifying Party notifies the Indemnified Party that it is assuming or reassuming control of such defence and thereafter assumes or reassumes such control and does not default.
(f) The Indemnified Party and the Indemnifying Party shall cooperate co-operate fully with each other in all reasonable respects with respect to Third Party Claims or in connection with the defense Specified Matters, and shall keep each other fully advised with respect thereto (including supplying copies of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party all relevant documentation promptly as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimit becomes available).
Appears in 2 contracts
Third Party Claims. If Any party that proposes to assert the right to be indemnified under this Section 7 in connection with a claim by a third party will, promptly after receipt of notice of commencement of any action against such party in respect of which a claim is to be made against any Indemnified Partyan indemnifying party or parties under this Section 7, and if notify each such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify indemnifying party of the Indemnifying Party commencement of such claims; providedaction, that enclosing a copy of all papers served, but the failure omission to so notify shall such indemnifying party will not relieve the Indemnifying Party indemnifying party from: (i) any liability that it might have to any indemnified party otherwise than under this Section 7; and (ii) any liability that it may have to any indemnified party under the foregoing provision of this Section 7 unless, and only to the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified party and it notifies the indemnifying party of its obligations hereundercommencement, except the indemnifying party will be entitled to participate in and, to the extent that it elects by delivering written notice to the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days indemnified party promptly after receipt receiving notice of such notice the commencement of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the conduct and controldefense of the action, through with counsel reasonably acceptable satisfactory to the Indemnified Party indemnified party, and after notice from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified party for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that such indemnified party unless: (i) the Indemnifying Party shall permit employment of counsel by the Indemnified Party to participate indemnified party has been authorized in such settlement or defense through counsel chosen writing by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and indemnifying party; (ii) the Indemnifying Party shall promptly indemnified party has reasonably concluded (based on advice of counsel) that there may be entitled legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party; (iii) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party); or (iv) the indemnifying party has not in fact employed counsel to assume the defense of such action only to within a reasonable time after receiving notice of the extent commencement of the Indemnifying Party acknowledges its indemnity obligation action, in each of which cases the reasonable fees, disbursements and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses other charges of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not will be at the expense of the Indemnifying Party unless (x) indemnifying party or parties. It is understood that the Indemnifying Party indemnifying party or parties shall have failednot, within a in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time after having been notified for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnified Party indemnifying party promptly as they are incurred. An indemnifying party will not, in any event, be liable for any settlement of any action or claim effected without its written consent. No indemnifying party shall, without the existence prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section 7 (whether or not any indemnified party is a party thereto), unless such claim as provided in the preceding sentencesettlement, to assume the defense compromise or consent includes an unconditional release of each indemnified party from all liability arising or that may arise out of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, action or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimproceeding.
Appears in 2 contracts
Samples: Purchase Agreement (Supertel Hospitality Inc), Purchase Agreement (Hersha Hospitality Trust)
Third Party Claims. If a claim Subject to Section 10.2, in the event that any Legal Proceeding is instituted or asserted by a third party is made against any Indemnified Partyin respect of which indemnification will be sought under Section 8.2 or 8.3 hereof, the indemnified party shall promptly cause written notice (the “Third Party Notice”) of the assertion of such Legal Proceeding to be forwarded to the indemnifying party. The indemnifying party shall have the right, at its sole option and expense, by providing written notice acknowledging its obligation to indemnify the indemnified party pursuant to Section 8.2 or 8.3 to (i) take control of the defense and investigation of such Legal Proceeding, (ii) employ and engage attorneys of its own choice (subject to the approval of the indemnified party, such approval not to be unreasonably withheld or delayed) to handle and defend the same, at the indemnifying party’s sole cost, risk and expense, and if (iii) compromise or settle such Indemnified Party intends to seek indemnity Legal Proceeding, which compromise or settlement shall be made only with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party written consent of such claimsthe indemnified party; provided, that such consent will not be required if such settlement includes an unconditional release of the failure indemnified party and otherwise provides solely for payment of monetary damages for which the indemnifying party will be responsible (except with respect to so notify shall not relieve the Indemnifying Party of its obligations hereunderan item relating to Taxes, except to the extent that the Indemnifying Party which is actually and materially prejudiced therebycovered in Section 10.2). The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and controlindemnified party shall, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Partyindemnifying party, cooperate in all reasonable respects with the indemnifying parties and their attorneys in the investigation, trial and defense of the settlement or defense thereof such Legal Proceeding and any appeal arising therefrom, and the Indemnified Party shall cooperate with it in connection therewith; providedindemnified party may, that (i) the Indemnifying Party shall permit the Indemnified Party to at its own cost, monitor and further participate in such settlement or the investigation, trial and defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party Legal Proceeding and (ii) any appeal arising therefrom. Notwithstanding the Indemnifying Party shall promptly be entitled indemnifying parties’ election to assume the defense of such action only Legal Proceeding, the indemnified party shall have, upon giving prior written notice to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; providedindemnifying parties, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ one separate counsel in any such action or claim and to participate in the defense thereofof such Legal Proceeding, but and the fees indemnifying parties shall bear the reasonable fees, costs and expenses of such separate counsel for the indemnified party if, but only if, the indemnified party shall not be at the expense of the Indemnifying Party unless have reasonably concluded in good faith that (x) an actual or potential conflict of interest (including one or more legal defenses or counterclaims available to it or to other indemnified parties that are different from or additional to those available to the Indemnifying Party shall have failedindemnifying parties) makes it inappropriate in the reasonable judgment of the indemnified party (upon and in conformity with the advice of counsel) for the same counsel to represent both the indemnified party and the indemnifying parties or (y) the claim seeks nonmonetary relief which, if granted, could materially and adversely affect the indemnified party or its Affiliates. If the indemnifying party elects not to defend against such Legal Proceeding, does not, within a reasonable time 60 days after having been notified by the Indemnified Party receipt of the existence Third Party Notice (or such earlier date, if the failure to assume the defense by such earlier date would materially impair the ability of the indemnified party to defend such claim as provided Legal Proceeding), acknowledge in the preceding sentence, writing its intent to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying PartyLegal Proceeding pursuant to this Section 8.5(a), or (z) contests its obligation to indemnify the named parties to any indemnified party in connection with such action (including any impleaded parties) include both Legal Proceeding, the indemnified party may defend against such Indemnified Party Legal Proceeding and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party indemnifying parties shall have the right to pay participate therein at their own cost. If the indemnified party defends any Legal Proceeding, then it shall keep the indemnifying party regularly apprised of the status of the Legal Proceeding and the indemnifying party shall reimburse the indemnified party for the reasonable expenses of one counsel engaged by the indemnified party to defend such Legal Proceeding upon submission of periodic bills and, if the indemnified party is Purchaser, Purchaser shall be entitled in accordance with the Escrow Agreement to instruct the Escrow Agent to release from escrow to Purchaser an amount equal to such reasonable expenses. In no event shall the indemnified party be entitled to compromise or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by Legal Proceeding without the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the prior written consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counselindemnifying party, such employees of the Indemnified Party as may consent not to be reasonably necessary for the preparation of the defense of any such claim unreasonably withheld, conditioned or for testimony as witnesses in any proceeding relating to such claimdelayed.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Perrigo Co)
Third Party Claims. If a claim by a third party any demand, claim, action or cause of action, suit, proceeding or investigation (collectively, the “Claim”) is made brought against any an Indemnified Party, and if such Party for which the Indemnified Party intends to seek indemnity with respect thereto under Section 15from the other party hereto (the "Indemnifying Party"), then the Indemnified Party within twenty-one (21) days after such Indemnified Party's receipt of the Claim, shall notify the Indemnifying Party pursuant to Paragraph “C” of Article “20” of this Agreement which notice shall contain a reasonably thorough description of the nature and amount of the Claim (the "Claim Notice"). The Indemnifying Party shall promptly have the option to undertake, conduct and control the defense of such claim or demand. Such option to undertake, conduct and control the defense of such claim or demand shall be exercised by notifying the Indemnified Party within ten (10) days after receipt of the Claim Notice pursuant to Paragraph “C” of Article “20” of this Agreement (such notice to control the defense is hereinafter referred to as the “Defense Notice”). The failure of the Indemnified Party to notify the Indemnifying Party of such claims; provided, that the failure to so notify Claim shall not relieve the Indemnifying Party from any liability which the Indemnifying Party may have pursuant to this Article “18” of its obligations hereunder, this Agreement except to the extent that such failure to notify the Indemnifying Party is actually and materially prejudiced therebyprejudices the Indemnifying Party. The Indemnified Party shall use all reasonable efforts to assist the Indemnifying Party shall have thirty (30) days after receipt in the vigorous defense of such notice to assume the conduct Claim. All costs and control, through counsel reasonably acceptable to expenses incurred by the Indemnified Party at in defending the expense of Claim shall be paid by the Indemnifying Party. If, of the settlement or defense thereof and however, the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party desires to participate in any such settlement defense or defense through counsel chosen by such Indemnified Partysettlement, provided that the fees it may do so at its sole cost and expenses of such counsel shall be borne by such Indemnified Party and expense (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, it being understood that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimdefense). Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the The Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlementClaim. If the Indemnifying Party does not notify elect to control the defense of the Claim, within the aforesaid ten (10) day period by proper notice pursuant to Paragraph “C” of Article “20” of this Agreement, then the Indemnified Party shall be entitled to undertake, conduct and control the defense of the Claim (a failure by the Indemnifying Party to send the Defense Notice to the Indemnified Party within thirty the aforesaid ten (3010) days after day period by proper notice pursuant to Paragraph “C” of Article “20” of this Agreement shall be deemed to be an election by the receipt Indemnifying Party not to control the defense of the Indemnified Party’s notice of a claim of indemnity hereunder Claim); provided, however, that the Indemnifying Party shall be entitled, if it elects so desires, to undertake the defense thereofparticipate therein (it being understood that in such circumstances, the Indemnified Party shall have be entitled to control the right defense). Regardless of which party has undertaken to contestdefend any claim, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall notmay, except with without the prior written consent of the Indemnified Party, enter into settle, compromise or offer to settle or compromise any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or demand; provided however, that if any settlement would result in the imposition of a consent to entry order, injunction or decree which would restrict the future activity or conduct of any judgment. The Indemnifying Party and the Indemnified Party, the consent of the Indemnified Party shall cooperate with each other in all reasonable respects in connection with be a condition to any such settlement. Notwithstanding the defense foregoing provisions of any claimthis Article “18” of this Agreement, including making available records relating to such claim and furnishing, without expense as a condition to the Indemnifying Party and/or either having the right to defend the Claim, or having control over settlement as indicated in this Article “18” of this Agreement, the Indemnifying Party shall execute an agreement acknowledging its counselliability for indemnification pursuant to this Article “18” of this Agreement. Whether the Indemnifying Party shall control and assume the defense of the Claim or only participate in the defense or settlement of the Claim, such employees of the Indemnified Party as may be reasonably necessary for shall give the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating Indemnifying Party and its counsel access, during normal business hours, to such claimall relevant business records and other documents, and shall permit them to consult with its employees and counsel.
Appears in 2 contracts
Samples: Merger Agreement (China PharmaHub Corp.), Merger Agreement (World Wide Relics Inc.)
Third Party Claims. If a In the event any claim by a third party or demand in respect of which an Indemnified Party might seek indemnity under Section 9.1 (Indemnification) is made asserted against any Indemnified Party, and if or sought to be collected from such Indemnified Party intends to seek indemnity with respect thereto under Section 15by a Person other than an ECP Indemnified Party or an ADA-ES Indemnified Party (“Third Party Claim”), such the Indemnified Party shall promptly notify deliver a Claim Notice with reasonable promptness to the Indemnifying Party of such claimsParty; provided, however, that the failure of the Indemnified Party to so notify give notice shall not relieve the Indemnifying Party of its obligations hereunder, under this Article IX except to the extent that the Indemnifying Party is actually and shall have been materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume will notify the conduct and control, through counsel reasonably acceptable Indemnified Party as soon as practicable within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party under Section 9.1 (Indemnification) and whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to Section 9.2(a), then the Indemnifying Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the settlement or defense thereof and Indemnifying Party (but only with the consent of the Indemnified Party, such consent not to be unreasonably withheld). The Indemnifying Party shall cooperate with it will have full control of such defense and proceedings, including (except as provided in connection therewiththe immediately preceding sentence) any settlement thereof; provided, however, that (ix) the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party, (y) the Indemnifying Party shall permit thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such claim, suit, action or proceeding and (z) the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this Section 9.2(a)(i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests. If requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 9.2(a)(i), and the Indemnified Party will bear its own costs and expenses with respect to such separate counsel except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (A) in the Indemnified Party’s good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to participate in such settlement be represented by separate counsel because a conflict or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) potential conflict exists between the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount which makes representation of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control both parties inappropriate under applicable standards of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if professional conduct or (iB) the claim for indemnification relates named parties to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified such Third Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between Claim include both the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party determines in good faith, based on advice of the existence of such claim as provided in the preceding sentencecounsel, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses are available to the Indemnified Party which it that are not available unavailable to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnified Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 9.1 (Indemnification) with respect to such Third Party Claim.
(ii) The Indemnified Party will have the right to pay defend, at the sole cost and expense of the Indemnifying Party, by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party (i) any Third Party Claim with respect to any Existing Action or Proceeding and (ii) any Third Party Claim for which the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend such Third Party Claim pursuant to Section 9.2(a), or for which the Indemnifying Party gives such notice but fails to prosecute diligently or settle such Third Party Claim. The Indemnified Party will have full control of such defense and proceedings, including any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Indemnified Party or any of its Affiliates). Notwithstanding the foregoing provisions of this Section 9.2(a)(ii), except with respect to any Existing Action or Proceeding, if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such claimThird Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, provided that the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 9.2(a)(ii) or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and the Indemnified Party will reimburse the Indemnifying Party in such event it shall waive any right to indemnity therefor full for all reasonable third party costs and expenses incurred by the Indemnifying Party for in connection with such claim unless litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 9.2(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(iii) If the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability to the Indemnified Party with respect to the Third Party Claim under Section 9.1 (Indemnification) or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim will be conclusively deemed a liability of the Indemnifying Party under Section 9.1 (Indemnification) and the Indemnifying Party shall have consented pay the amount of such Loss to such payment or settlementthe Indemnified Party on demand following the final determination thereof. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all has timely disputed its liability with respect to such claim or consent to entry of any judgment. The claim, the Indemnifying Party and the Indemnified Party shall cooperate with each other will proceed in all reasonable respects in connection with good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counselResolution Period, such employees dispute shall be resolved by litigation in a court of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimcompetent jurisdiction.
Appears in 2 contracts
Samples: Joint Development Agreement (Ada-Es Inc), Joint Development Agreement (Ada-Es Inc)
Third Party Claims. If the indemnification sought pursuant hereto involves a claim made by a third party is made against any Indemnified Party, and if such the Indemnified Party intends to seek indemnity with respect thereto under Section 15(a “Third Party Claim”), such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party will be entitled to participate in such settlement or the defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Third Party and (ii) the Indemnifying Party shall promptly be entitled Claim and, if it so chooses, to assume the defense of such action only to the extent Third Party Claim with counsel selected by the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefromParty; provided, furtherhowever, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) . Should the claim seeks an injunction or equitable relief against Indemnifying Party be permitted and so elect to assume the Indemnified Party; (iii) defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnified Party has been advised for any legal expenses subsequently incurred by the Indemnified Party in writing by counsel connection with the defense thereof unless and to the extent that a conflict arises between the interests of the Parties. If the Indemnifying Party assumes such defense, the Indemnified Party will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party will control such defense. The Indemnifying Party will be liable for the reasonable likelihood exists fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party will have failed to give notice of the Third Party Claim as provided above) or in the event of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that Parties. If the Indemnifying Party failed chooses to defend or is failing to vigorously prosecute or defend such claim. Any Indemnified a Third Party shall have Claim, each of the right to employ separate counsel in any such action or claim and to participate Parties hereto will cooperate in the defense or prosecution thereof, but . Such cooperation will include the fees retention and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by upon the Indemnifying Party, or (z’s request) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available provision to the Indemnifying Party the assertion of records and information which would be adverse are reasonably relevant to the interests such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of the Indemnified Partyany material provided hereunder. So long as If the Indemnifying Party is reasonably contesting chooses to defend or prosecute any such claim in good faithThird Party Claim, the Indemnified Party shall not will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay or settle any the full amount of the liability in connection with such claim. Notwithstanding the foregoingThird Party Claim; provided, however, that the Indemnified Party shall have the right to pay or settle consent to any such claimsettlement, provided compromise or discharge that in such event it shall waive any right (x) would materially adversely affect the rights granted to indemnity therefor by the Indemnified Party hereunder, (y) would materially conflict with the terms of this Agreement or (z) would materially adversely affect the Products outside the Territory. Whether or not the Indemnifying Party for such claim unless will have assumed the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice defense of a claim of indemnity hereunder that it elects to undertake the defense thereofThird Party Claim, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall will not thereby waive admit any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to to, or settle, compromise or discharge, such claim or consent to entry of any judgment. The Indemnifying Third Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, Claim without expense to the Indemnifying Party and/or its counselParty’s prior written consent. [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimMARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
Appears in 2 contracts
Samples: License Agreement (Jazz Pharmaceuticals Inc), License Agreement (Jazz Pharmaceuticals Inc)
Third Party Claims. If (a) In the event Purchaser or Seller becomes aware of a third-party claim by a third party is made against any Indemnified Party, and if such Indemnified Party intends which it reasonably believes may result in indemnification pursuant to seek indemnity with respect thereto under Section 15applicable provisions of this Article 9, such Indemnified Party Person shall promptly notify the Indemnifying other party of such claim; provided that, the failure of any Purchaser Indemnified Party to give prompt notice of such third-party claim (the “Claim Notice”) shall not release or otherwise affect Seller’s obligations with respect to its indemnification obligations except to the extent it is actually and materially prejudiced thereby. The Seller may elect to assume the defense of such third-party claim at its sole expense by notifying the Indemnified Party of such claims; providedelection promptly after receipt of the Claim Notice, that the but in no event later than fifteen (15) Business Days of its receipt thereof. The failure to so notify give such notice shall not relieve the Indemnifying Party of its obligations hereunderaffect Seller’s right to assume such defense, except to the extent that the Indemnifying any Purchaser Indemnified Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice If Seller so elects to assume the conduct and controldefense of such third-party claim, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Purchaser Indemnifying Party shall permit proceed to defend such claim in a diligent manner with counsel of its choice (which must be reasonably satisfactory to the Purchaser Indemnified Party); (ii) the Purchaser Indemnified Party shall make available to Seller any non-privileged documents and materials in its possession that may be reasonably necessary to the defense of such claim; (iii) Seller shall keep the Purchaser Indemnified Party reasonably informed of all material developments and events relating to such claim; (iv) the Purchaser Indemnified Party shall have the right to participate in the defense of such settlement claim, but at its sole cost and expense, unless (A) the engagement of counsel shall have been specifically authorized in writing by Seller, or defense through (B) the named parties to the third-party complaint (including impleaded parties) include both the Purchaser Indemnified Parties and Seller, and in the opinion of counsel chosen by such to the Purchaser Indemnified Party, provided that there exists a conflict (or potential conflict) of interest between such parties, in which case the fees and reasonable expenses of such the Purchaser Indemnified Party’s counsel shall be borne paid or reimbursed by Seller (provided that in no event shall Seller be liable for more than one counsel for all Purchaser Indemnified Parties with respect to such third-party claim); and (v) Seller shall not, without the consent of the Purchaser Indemnified Party (which consent may not be unreasonably withheld or delayed), settle, compromise or discharge such third-party claim or permit a default or consent to entry of judgment, unless any such settlement, compromise, discharge or consent includes a release of the Purchaser Indemnified Party from all liability arising out of such third-party claim, provides solely for monetary relief and involves no finding or admission of any violation of any Law by the Purchaser Indemnified Party and involves no limitation on the Use by Purchaser or rights of Purchaser in any Purchased Asset.
(b) Subject to the overall limitations set forth in this Section 9.4, if Seller fails to give notice of its election to assume the defense of a third-party claim pursuant to Section 9.5(a), and the Purchaser Indemnified Party proceeds with the defense of such claim or proceeding on its own: (i) all reasonable expenses relating to the defense of such claim (with counsel not reasonably objected to by Seller) shall be borne and paid exclusively by Seller (provided that in no event shall Seller be liable for more than one counsel for all Purchaser Indemnified Parties with respect to such third-party claim); (ii) the Indemnifying Party shall promptly make available to the Indemnified Party any non-privileged documents and materials in its possession or control that may be entitled reasonably necessary to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Purchaser Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists shall keep Seller reasonably informed of a conflict of interest between the Indemnifying Party all material developments and the Indemnified Partyevents relating to such claim or proceeding; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party Seller shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, but at its sole cost and expense; and (yv) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Purchaser Indemnified Party shall have been advised in writing by not, without the consent of Seller (which consent may not be unreasonably withheld or delayed), settle, compromise or discharge such counsel that there may be one third-party claim or more legal defenses available permit a default or consent to the Indemnified Party which are not available to the Indemnifying Partyentry of judgment, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting unless any such claim in good faithsettlement, compromise, discharge or consent includes a release of Seller from all liability arising out of such third-party claim, provides solely for monetary relief and involves no finding or admission of any violation of any Law by the Indemnified Party shall not pay or settle Purchaser (unless Seller elects to waive any such claimrequirement). Notwithstanding the foregoing, the Indemnified Party at any time upon five (5) business days notice, Seller shall have the right to pay or settle any such claim, provided assume the defense of a third-party claim that in such event it shall waive any right to indemnity therefor is currently being defended by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Purchaser Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof Section 9.4(b), except to the giving by extent that the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Purchaser Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim would be actually and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimmaterially prejudiced thereby.
Appears in 2 contracts
Samples: Asset Purchase Agreement (4 Kids Entertainment Inc), Asset Purchase Agreement
Third Party Claims. If Promptly after receipt by a party entitled to indemnification hereunder (the “Indemnitee”) of notice of any demand, claim or circumstance which, with the lapse of time, would or might give rise to a claim by a third or the commencement (or threatened commencement) of any action, proceeding or investigation (an “Asserted Liability”) that may result in Damages, the Indemnitee shall give notice thereof (the “Claims Notice”) to the party is made against any Indemnified or parties with an obligation to indemnify (the “Indemnifying Party”). The Claims Notice shall describe the Asserted Liability in reasonable detail and shall indicate the amount (estimated, if necessary and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent feasible) of the Damages that have been or may be suffered by the Indemnifying Party is actually and materially prejudiced therebyIndemnitee. The Indemnifying Party may elect to defend, at its own expense and by its own counsel, any Asserted Liability, unless the Indemnitee believes in good faith on the advice of counsel that (i) there are one or more legal or equitable defenses available to it that are different from or additional to those available to the Indemnifying Party, or (ii) such Asserted Liability could reasonably be expected to result in a grant of injunctive or equitable relief. If the Indemnifying Party elects to compromise or defend such Asserted Liability, it shall have within thirty (30) days after receipt (or sooner, if the nature of such notice the Asserted Liability so requires) notify the Indemnitee of its intent to assume do so, and the conduct and controlIndemnitee shall cooperate, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, in the compromise of, or defense against, such Asserted Liability at the sole cost of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) Indemnifying Party. If the Indemnifying Party shall permit elects not to compromise or defend the Indemnified Asserted Liability, fails to notify the Indemnitee of its election as herein provided or contests its obligation to indemnify under this Agreement, the Indemnitee may pay, compromise or defend such Asserted Liability. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnitee may settle or compromise any claim over the objection of the other, provided, however, that consent to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that compromise shall not be unreasonably withheld. The Indemnifying Party shall reimburse the fees Indemnitee promptly on demand for the costs and expenses of such counsel shall be borne any defense presented or compromise entered into by such Indemnified Party Indemnitee. In any event, the Indemnitee and (ii) the Indemnifying Party shall promptly be entitled to assume may participate (but not control), at their own expense, in the defense of such action only to the extent Asserted Liability. If the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against chooses to defend the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Partyclaim, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party Indemnitee shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or make available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faithbooks, the Indemnified Party shall not pay records or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay other documents within its control that are necessary or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party appropriate for such claim unless defense. Upon payment in full of any Damages or the payment of any judgment or settlement with respect to any Asserted Liability, the Indemnifying Party shall have consented be subrogated to the extent of such payment to the rights of the Indemnitee against any person with respect to the subject matter of such Claim or settlementThird Party Claim. If The Indemnitee shall assign or otherwise cooperate with the Indemnifying Party does not notify Party, at the Indemnified Party within thirty (30) days after the receipt cost and expense of the Indemnified Indemnifying Party’s notice of a claim of indemnity hereunder that it elects , to undertake the defense thereofpursue any claims against, the Indemnified Party shall have the right to contestor otherwise recover amounts from, settle any person liable or compromise the claim but shall not thereby waive responsible for any right to indemnity therefor Damages for which indemnification has been received pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim.
Appears in 2 contracts
Samples: Partnership Interest Purchase Agreement (Globalstar, Inc.), Partnership Interest Purchase Agreement (Loral Space & Communications Inc.)
Third Party Claims. If a claim by a third party is made against any Indemnified Party, and if such Upon the Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify informing the Indemnifying Party of such claims; providedthe existence of any event or claim which may give rise to a Third Party Claim against the Indemnified Party, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate fully in the defense, negotiation or settlement of such Third Party Claim, it being understood that the defense shall be conducted jointly but, as far as strategic initiatives are concerned, the ultimate decision shall remain with the Indemnifying Party. All costs and expenses incurred by the Indemnified Party arising from the Indemnifying Party’s decision to defend, negotiate and settle any such Claims or otherwise howsoever and whatsoever shall be borne absolutely by the Indemnifying Party. The Indemnified Party shall not settle any matter which may give rise to the Indemnifying Party’s liability herein without the latter’s prior written consent. Should the Indemnifying Party obtain a monetary settlement proposal from a third party claimant and the Indemnified Party refuse to agree to such settlement, the Indemnified Party shall bear the risk of any claim made by such third party in excess of the proposed settlement amount and the Indemnified Party shall be free to conduct the defense, negotiation or settlement. If the Indemnified Party shall have decided not to defend such claim or to settle it in connection therewith; a manner unsatisfactory to the Indemnifying Party, the Indemnifying Party may, at its sole cost and expense, assume full responsibility for the defense or settlement of such claim, provided, however, that (i) the Indemnifying Party shall permit conduct its defense or settlement in a manner which does not cause any further Loss to the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by regularly consults with the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend during such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim.
Appears in 2 contracts
Samples: Stock Purchase Agreement (O'Gara Group, Inc.), Stock Purchase Agreement (O'Gara Group, Inc.)
Third Party Claims. If (a) The Indemnified Party agrees to give the Indemnifying Party notice in writing of the assertion of any claim or demand made by, or an action, proceeding or investigation instituted by, any Person not a claim by Party to this Agreement (a third party is made against any Indemnified Party, and if “Third Party Claim”) in respect of which indemnity may be sought under Section 8.1 in accordance with the notice procedures set forth in Section 8.2 promptly after such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified learns of the Third Party shall promptly notify the Indemnifying Party of such claimsClaim; provided, however, that the failure to so notify give such notice shall not relieve affect the Indemnifying Party of its obligations indemnification provided hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt been actually prejudiced as a result of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that failure (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, except that the Indemnifying Party shall not be entitled liable for any expenses incurred during the period in which the Indemnified Party failed to assume control give such notice). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within five (5) calendar days after the Indemnified Party’s receipt thereof, copies of such defense all notices and shall pay the fees and expenses of counsel retained documents (including court papers) received by the Indemnified Party if relating to the Third Party Claim.
(ib) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks If a Third Party Claim is made against an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and will be entitled to participate in the defense thereofthereof and, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentenceif it so chooses, to assume the defense of such claim, (y) the employment of such thereof with counsel has been specifically authorized in writing selected by the Indemnifying Party, . The Parties agree that Sellers are hereby assuming and will assume the defense of any claims related to or (z) arising from the named parties to any such action (including any impleaded parties) include both such Indemnified Party and Excluded Liabilities. Should the Indemnifying Party and so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not, as long as it conducts such Indemnified Party shall have been advised in writing by such counsel that there may defense, be one or more legal defenses available liable to the Indemnified Party which are not available to for legal expenses subsequently incurred by the Indemnifying Party, or available to Indemnified Party in connection with the defense thereof. If the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any assumes such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoingdefense, the Indemnified Party shall have the right to pay or settle any such claimparticipate in the defense thereof and to employ counsel, provided that in such event it shall waive any right to indemnity therefor at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party shall have not yet given notice of the Third Party Claim as provided above). If the Indemnifying Party chooses to defend or prosecute any Third Party Claim, all of the Parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such claim unless Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party shall have consented to assumed the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such payment or settlementThird Party Claim without the Indemnifying Party’s prior written consent. If Notwithstanding the foregoing, if a settlement offer is made by a third party claimant solely for money damages, and the Indemnifying Party does not notify notifies in writing the Indemnified Party within of the Indemnifying Party’s willingness to accept the settlement offer and, subject to the applicable limitations of this Article VIII, pay the amount called for by such offer, and the Indemnified Party declines to accept such offer, the Indemnified Party may continue to contest such Third Party Claim, free of any participation by the Indemnifying Party, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party has an obligation to pay hereunder shall be limited to the lesser of (i) the amount of the settlement offer that the Indemnified Party declined to accept plus the other Losses of the Indemnified Party relating to such Third Party Claim prior to the date of its rejection of the settlement offer or (ii) the aggregate Losses of the Indemnified Party with respect to such Third Party Claim.
(c) Notwithstanding any provision of this Agreement to the contrary, including Sections 8.2 and 8.3, with respect to a Tax Product Claim: (i) Buyer Indemnified Parties shall have the right to make any such claim against Parent and Sellers prior to any Third Party Claim first having been made against Buyer or any of its Affiliates if such claim is made prior to the date that is exactly twelve (12) months after the Closing Date; (ii) that is not based on a Third Party Claim, Buyer shall provide Sellers with written notice of such claim in a manner that satisfies the requirements of Section 8.2(a)(i) and Section 8.2(a)(ii); (iii) that is based on, includes or relates to a Third Party Claim brought against a Buyer Indemnified Party (including any Third Party Claims brought against a Buyer Indemnified Party after a Buyer Indemnified Party first brought a Tax Product Claim against Parent and Sellers), Buyer shall provide Parent and Sellers with written notice of such Third Party Claim in a manner that satisfies the requirements of Section 8.3(a); and (iv) Buyer shall control the conduct of all Third Party Claims (including the negotiations of any agreements entered into with a Taxing Authority or third party relating to such claim) that relate or give rise to a Tax Product Claim (including the process of determining how to cause any annuity or life insurance contract that relates to such claim to comply with the applicable provisions of the Code (or any relevant Governmental Entity’s interpretation thereof) and implementing such method); provided, however, that Sellers or Parent shall control the conduct of any such claim with respect to and to the extent that such claims could result in an indemnity obligation by Parent and/or Sellers under this Agreement; and provided, further, that the non-controlling Party shall have the right to participate in the conduct of any such Third Party Claim.
(d) If a Buyer Indemnified Party brings a Tax Product Claim against Parent and/or Sellers, Parent and/or Sellers will have no obligation to pay to the Buyer Indemnified Parties any amount due with respect to such claim until the first to occur of: (i) a Final Determination having been reached with respect to the matter that gave rise to such Tax Product Claim (including for these purposes any closing agreements entered into by a Buyer Indemnified Party with a Taxing Authority that reach a settlement with respect to the amount of Tax that is due with respect to a Tax Product Claim); (ii) the settlement or conclusion of all Third Party Claims related to such Tax Product Claim; or (iii) Parent, Sellers and Buyer entering into a mutual agreement with respect to the total amount that is due from Parent and Sellers with respect to such Tax Product Claim.
(e) If a Buyer Indemnified Party brings a Tax Product Claim prior to a Third Party Claim and Parent or Sellers do not agree with a matter relating to such claim (including the steps to be taken to mitigate any such claim), then Sellers shall provide Buyer with written notice of their objections setting forth in reasonable detail these objections. With respect to any such disputed matters, Buyer and Sellers shall attempt in good-faith to settle such disputes for a period of thirty (30) days after Buyer has received such notice. If the receipt Parties cannot settle such disputes within such time, Buyer and Sellers shall submit their disputes to a Tax Referee for final settlement as to the disputed issues. The decision of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake Tax Referee shall be final and binding on the defense thereof, Parties and the Indemnified Party shall have the right to contest, settle or compromise the claim but Parties shall not thereby waive take any right action or fail to indemnity therefor pursuant take any action that would be considered to this Agreementbe contrary to the decision of the Tax Referee. The Indemnifying Party shall not, except with the consent costs of the Indemnified Party, enter into any settlement that is not entirely indemnifiable Tax Referee shall be shared equally by the Indemnifying Party pursuant to this Agreement Buyer and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimParent.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Protective Life Insurance Co), Stock Purchase Agreement (Protective Life Corp)
Third Party Claims. If a claim by a third party a (“Third Party Claim”) is made against any a Seller Indemnified Party or a Buyer Indemnified Party (an “Indemnified Party”), and if such Indemnified Party party intends to seek indemnity with respect thereto under Article 9 or Section 159.3, such Indemnified Party shall promptly notify furnish written notice to the Indemnifying Party indemnifying party (the “Indemnitor”) of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party Indemnitor shall have thirty (30) days after receipt of such notice to assume the conduct undertake, conduct, and control, control (through counsel of its own choosing and at its own expense) the defense thereof. The Indemnitor may not assume control of the defense of any Third Party Claim if (i) the Third Party Claim relates to or arises in connection with any criminal liability, (ii) the Third Party Claim seeks an injunction or equitable relief against the Indemnified Party, or (iii) the Indemnified Party reasonably acceptable believes an adverse determination with respect to the Third Party Claim would be materially detrimental to the Indemnified Party’s reputation or future business prospects, but in any event, shall remain subject to its indemnification obligations in this Article 9. If the Indemnitor elects to undertake the defense of any Third Party at the expense of the Indemnifying PartyClaim, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; providedprovided that the Indemnitor shall not settle any such Third Party Claim without the prior written consent of the Indemnified Party (which consent will not be unreasonably withheld or delayed) unless the relief consists solely of money damages and includes a provision whereby the plaintiff or claimant in the matter releases Buyer Indemnified Parties or Seller Indemnified Parties, that (i) the Indemnifying Party as applicable, from all liability with respect thereto. The Indemnitor shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified PartyParty (however, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party except if (i) the claim for indemnification relates to Indemnified Party shall have determined in good faith that an actual or arises in connection with any criminal proceeding, action, indictment, allegation potential conflict of interest makes representation by the same counsel or investigation; the counsel selected by the Indemnitor inappropriate or (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) Indemnitor shall have authorized the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate legal counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified PartyIndemnitor’s expense). So long as the Indemnifying Party Indemnitor, at Indemnitor’s cost and expense, (i) has undertaken the defense of, and assumed full responsibility for all indemnified liabilities with respect to, such claim, (ii) is reasonably contesting any such claim in good faith, by appropriate proceedings, and (iii) has taken such action (including the posting of a bond, deposit, or other security) as may be necessary to prevent any action to foreclose a lien against or attachment of the property of the Indemnified Party for payment of such claim, the Indemnified Party shall not pay or settle any such claim. Notwithstanding compliance by the foregoingIndemnitor with the preceding sentence, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party Indemnitor for such claim unless the Indemnifying Party shall have consented to such payment or settlementclaim. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder hereunder, the Indemnitor does not notify the Indemnified Party that it elects (at Indemnitor’s cost and expense) to undertake the defense thereofthereof and assume full responsibility for all indemnified liabilities with respect thereto, or gives such notice and thereafter fails to contest such claim in good faith or to prevent action to foreclose a lien against or attachment of the Indemnified Party’s property as contemplated above, the Indemnified Party shall have the right to contest, contest but shall not settle or compromise the claim but and, to the extent the actions taken by the Indemnified Party in settling or compromising such claim are reasonable and in good faith, the Indemnified Party shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (American Midstream Partners, LP)
Third Party Claims. If a claim Promptly after receipt by a third Party entitled to indemnification hereunder (the “Indemnitee”) of written notice of the assertion or the commencement of any Proceeding by a third-party is made against with respect to any Indemnified Partymatter referred to in Section 8.2 or Section 8.3 (a “Third Party Claim”), the Indemnitee shall give written notice thereof to the party obligated to indemnify Indemnitee (the “Indemnitor”), which notice shall include a description of the Third Party Claim, the amount thereof (if known and quantifiable) and the basis for the Third Party Claim, and if such Indemnified Party intends to seek indemnity thereafter shall keep the Indemnitor reasonably informed with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party of such claimsthereto; provided, however, that failure of the failure Indemnitee to so notify give the Indemnitor notice as provided herein shall not relieve the Indemnifying Party Indemnitor of its obligations hereunder, hereunder except to the extent that the Indemnifying Party Indemnitor is actually and materially prejudiced thereby. The Indemnifying Any Indemnitor shall be entitled to participate in the defense of any Proceeding giving rise to Third Party Claim at such Indemnitor’s expense, and at its option (subject to the limitations set forth below) shall have thirty (30) days after receipt of such notice be entitled to assume the conduct defense thereof by appointing a nationally recognized and control, through reputable counsel reasonably acceptable to the Indemnified Party at Indemnitee to be the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it lead counsel in connection therewithwith such defense; provided, that however, that:
(i) the Indemnifying Party Indemnitee shall permit the Indemnified Party be entitled to participate in the defense of such settlement or defense through Third Party Claim and to employ counsel chosen by of its choice for such Indemnified Partypurpose; provided, provided however, that the fees and expenses of such separate counsel shall be borne by the Indemnitee (other than any fees and expenses of such Indemnified Party separate counsel that are incurred prior to the date the Indemnitor effectively assumes control of such defense which, notwithstanding the foregoing, shall be borne by the Indemnitor, and except that the Indemnitor shall pay all of the fees and expenses of such separate counsel if the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee);
(ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party Indemnitor shall not be entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnitee) and shall pay the fees and expenses of counsel retained by the Indemnified Party Indemnitee if (i1) the claim for indemnification relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation; (ii2) the Indemnitee reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would be detrimental to or injure the Indemnitee’s reputation or future business prospects; (3) the claim seeks an injunction or equitable relief against the Indemnified PartyIndemnitee; (iii4) the Indemnified Party Indemnitee has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party Indemnitor and the Indemnified PartyIndemnitee; or (iv5) upon petition by the Indemnified PartyIndemnitee, the appropriate court rules that the Indemnifying Party Indemnitor failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party ; and
(iii) if the Indemnitor shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of control the defense of any such claim, the Indemnitor shall obtain the prior written consent of the Indemnitee before entering into any settlement of a claim or for testimony ceasing to defend such claim if, pursuant to or as witnesses in any proceeding relating a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnitee or if such settlement does not expressly and unconditionally release the Indemnitee from all liabilities and obligations with respect to such claim, without prejudice.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Generation NEXT Franchise Brands, Inc.)
Third Party Claims. If a claim by (a) In the event an Indemnified Party becomes aware of a third party is made against any Indemnified Party, and if such claim that the Indemnified Party intends to seek indemnity with respect thereto under Section 15reasonably believes may result in a demand for indemnification hereunder (a “Third Party Claim”), such the Indemnified Party shall promptly notify the Indemnifying Party Parties of such claimsclaim, and the Indemnifying Parties shall be entitled, at their expense, to participate in, but not to determine or conduct, the defense of such claim; provided, however, that no delay on the failure to so notify part of the Indemnified Party in notifying the Indemnifying Parties shall not relieve the Indemnifying Party of its obligations hereunder, except Parties from any obligation hereunder unless (and then solely to the extent extent) the Indemnifying Parties are thereby prejudiced.
(b) Notwithstanding anything contained in Section 9.5(a) above, the Indemnifying Parties will have the right to defend any Indemnified Party against the Third Party Claim with counsel of their choice reasonably satisfactory to the Indemnified Party if (A) the Indemnified Party is negligently conducting the defense of the Third Party Claim or (B) so long as (i) the Indemnifying Parties notify the Indemnified Party in writing within 30 business days after the Indemnified Party has given notice of the Third Party Claim that the Indemnifying Parties will indemnify the Indemnified Party is actually from and materially prejudiced thereby. The against the entirety of any Damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim, (ii) the Indemnifying Parties provide the Indemnified Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel with evidence reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled Parties will have the financial resources to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief defend against the Indemnified Party; Third Party Claim and fulfill their indemnification obligations hereunder, (iii) the Indemnified Third Party has been advised in writing by counsel that a reasonable likelihood exists Claim involves only monetary damages and does not seek an injunction or other equitable relief against Buyer or any successor-in-interest of a conflict of interest between Buyer to the Indemnifying Party and the Indemnified Party; or Profiler Business, (iv) upon petition by the Indemnified Partysettlement of, or an adverse judgment with respect to, the appropriate court rules that the Indemnifying Third Party failed or Claim is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate not, in the defense thereof, but the fees and expenses of such counsel shall not be at the expense good faith judgment of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party Buyer or any successor-in-interest of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available Buyer to the Indemnified Party which are not available Profiler Business, likely to the Indemnifying Party, establish a precedential custom or available to the Indemnifying Party the assertion of which would practice that could be materially adverse to the continuing business interests of the Indemnified Party. So long as Party (such materiality in its good faith judgment), and (v) the Indemnifying Party is reasonably contesting any such claim Parties are not negligent in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt their conduct of the Indemnified Party’s notice defense of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Third Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this AgreementClaim. The Indemnifying Parties will not consent to the entry of a judgment or enter into any settlement agreement with respect to a Third Party shall not, except with Claim without the prior written consent of the Indemnified Party, unless such judgment or settlement includes a full release of the Indemnified Party in respect of all indemnifiable Damages resulting therefrom, related thereto or arising therefrom.
(c) In the event any of the conditions in Section 9.5(b)(B) above is or becomes unsatisfied, however, (i) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of to, the Third Party Claim in any judgment. The Indemnifying Party manner it may deem appropriate (and the Indemnified Party shall cooperate with each other in all reasonable respects need not consult with, or obtain any consent from, the Indemnifying Parties in connection with therewith), (ii) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable legal fees and expenses), and (iii) the Indemnifying Parties will remain responsible for any Damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim to the fullest extent provided in this Article IX; provided, however, that notwithstanding anything contained in this Section 9.5(c), the Indemnifying Parties shall be entitled, at their expense, to participate in, but not determine or conduct, the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Third Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimClaim.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (SolarWinds, Inc.)
Third Party Claims. If In the case of a claim by a third party is made against any Indemnified PartyThird Party Claim, and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified Party shall promptly notify the Indemnifying Party of such claims; provided, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt the right, at its expense, to participate in or assume control of such notice the negotiation, settlement or defence of the Claim. If the Indemnifying Party elects to assume the conduct and such control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit reimburse the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses for all of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that 's out-of-pocket expenses incurred as a reasonable likelihood exists result of a conflict of interest between the Indemnifying Party and the Indemnified Party; such participation or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimassumption. Any The Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereofnegotiation, but settlement or defence of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and expenses disbursements of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified paid by the Indemnified Party of unless the existence of such claim as provided in Indemnifying Party consents to the preceding sentence, to assume the defense of such claim, (y) the employment retention of such counsel has been specifically authorized in writing by the Indemnifying Party, at its expense or (z) unless the named parties to any such action (including any impleaded parties) or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). The Indemnified Party shall cooperate with the Indemnifying Party so as to permit the Indemnifying Party to conduct such negotiation, settlement and defence and for this purpose shall preserve all relevant documents in relation to the Third Party Claim, allow the Indemnifying Party access on reasonable notice to inspect and take copies of all such documents and require its personnel to provide such statements as the Indemnifying Party may reasonably require and to attend and give evidence at any trial or hearing in respect of the Third Party Claim. If, having elected to assume control of the negotiation, settlement or defence of the Third Party claim, the Indemnifying Party thereafter fails to conduct such negotiation, settlement or defence with reasonable diligence, then the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If any Third Party Claim is of a nature such that (i) the Indemnified Party is required by Applicable Law or the order of any court, tribunal or regulatory body having jurisdiction, or (ii) it is necessary in the reasonable view of the Indemnified Party acting in good faith and in a manner consistent with reasonable commercial practices, in respect of (A) a Third Party Claim by a customer relating to products or services supplied by the Business or (B) a Third Party Claim relating to any Contract which is necessary to the ongoing operations of the Business or any material part thereof in order to avoid material damage to the relationship between the Indemnified Party and any of its major customers or to preserve the rights of the Indemnified Party under such an essential Contract, to make a payment to any person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, as the case may be, then the Indemnified Party may make such payment and the Indemnifying Party shall, promptly after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of such a payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party. If such a payment, by resulting in settlement of the Third Party Claim, precludes a final determination of the merits of the Third Party Claim and the Indemnified Party and the Indemnifying Party and are unable to agree whether such Indemnified Party shall have been advised payment was unreasonable in writing by such counsel that there may be one or more legal defenses available the circumstances having regard to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests amount and merits of the Indemnified Party. So long as the Indemnifying Third Party is reasonably contesting any Claim, then such claim in good faith, the Indemnified Party dispute shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party be referred to and finally settled by binding arbitration from which there shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimno appeal.
Appears in 2 contracts
Samples: Purchase and Subscription Agreement (Powertrader Inc), Purchase Agreement (Powertrader Inc)
Third Party Claims. If (i) In order for a person (the “indemnified party”) to be entitled to any indemnification provided for under Section 9.02 or Section 9.07 in respect of, arising out of or involving a claim made by any person against the indemnified party (a third party is made against any Indemnified Party, and if such Indemnified “Third Party intends to seek indemnity with respect thereto under Section 15Claim”), such Indemnified Party shall promptly indemnified party must notify the Indemnifying indemnifying party in writing (and in reasonable detail) of the Third Party Claim promptly following receipt by such indemnified party of such claimsnotice of the Third Party Claim; provided, however, that the failure to so notify give such notification shall not relieve affect the Indemnifying Party of its obligations hereunder, indemnification provided hereunder except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying indemnifying party shall have been actually and materially prejudiced as a result of such failure. Thereafter, the indemnified party shall deliver to the indemnifying party, promptly following the indemnified party’s receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party acknowledges its indemnity obligation and assumes and holds Claim.
(ii) If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof by written notice to the indemnified party within 10 days of the receipt of the notice received pursuant to Section 9.09(a)(i) with counsel selected by the indemnifying party; provided that such Indemnified Party harmless from and against counsel is not reasonably objected to by the full amount of any Loss resulting therefromindemnified party; provided, further, that such written notice given after 10 days will be valid except and only to the Indemnifying Party extent the indemnified party shall have been actually and materially prejudiced; provided, further, that notwithstanding the foregoing, the indemnifying party shall not be entitled to assume control of such defense and shall pay the reasonable fees and expenses of counsel (reasonably acceptable to the indemnifying party) retained by the Indemnified Party indemnified party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation allegations or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Partyindemnified party; (iii) the Indemnified Party has been advised in writing by indemnified party reasonably believes upon advice of counsel that an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would have a reasonable likelihood exists of a conflict of interest between material adverse effect on the Indemnifying Party and the Indemnified PartyBusiness; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party indemnifying party failed or is failing to vigorously prosecute or defend such claim; or (v) if the claim is subject to the Cap and such claim together with all outstanding and unresolved claims that are subject to the Cap could reasonably be expected to give rise to Losses which are more than 150% of the remaining amount indemnifiable by such indemnifying party with respect to such claims pursuant to this Article IX. Any Indemnified Should the indemnifying party be entitled and so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense in accordance with this Agreement, the indemnified party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereofthereof and to employ counsel, but at its own expense, separate from the fees counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees, costs and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party is delinquent in giving notice of the Third Party Claim as provided above) and with respect to any Third Party Claim where the indemnifying party was prohibited from assuming such counsel defense pursuant to this Section 9.09. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party’s request) the provision to the indemnifying party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. No party shall compromise or settle any Third Party Claim without the prior written consent of the other party, which consent shall not be at unreasonably withheld, conditioned or delayed; provided, however, that if such compromise or settlement relates only to monetary amounts and provides for the expense full and unconditional release of the Indemnifying Purchaser Indemnitees from all liability in connection with such claim, then the Seller may settle such claim without the Purchaser’s consent as long as the Seller pays in full the amount required to settle such Third Party unless (x) Claim and the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence settlement of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify contain an admission of wrongdoing on the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry part of any judgmentPurchaser Indemnitee. The Indemnifying All claims under Section 9.02 or Section 9.07 other than Third Party and the Indemnified Party Claims shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimgoverned by Section 9.09(b).
Appears in 2 contracts
Samples: Purchase Agreement (Salton Inc), Purchase Agreement (Spectrum Brands, Inc.)
Third Party Claims. (i) If a any claim or demand for which an indemnified Party may claim indemnification pursuant to Section 7.02 or Section 7.03, as the case may be, is asserted against or sought to be collected from the indemnified Party by a third party is made against any Indemnified Party(a “Third-Party Claim”), and if such Indemnified Party intends to seek indemnity with respect thereto under Section 15, such Indemnified then the indemnified Party shall give written notice thereof to the indemnifying Party as promptly notify as practicable following the Indemnifying receipt by the indemnified Party of such claimsthe Third-Party Claim (the “Third-Party Claim Notice”); provided, provided that the failure so to so notify shall the indemnifying Party will not relieve the Indemnifying indemnifying Party of its obligations hereunder, except from any liability it may have to the extent that indemnified Party under Section 7.02 or Section 7.03, as applicable, unless, and then only to the Indemnifying Party is actually and materially prejudiced thereby. extent, the failure so to notify results in the loss of material rights or defenses.
(ii) The Indemnifying indemnifying Party shall have thirty twenty (3020) days after receipt from the date on which the Third-Party Claim Notice is duly given (the “Notice Period”) to notify the indemnified Party whether or not the indemnifying Party desires, at its sole cost and expense, to defend the indemnified Party against the Third-Party Claim with counsel of its choice reasonably satisfactory to the indemnified Party.
(iii) If the indemnifying Party notifies the indemnified Party in writing within the Notice Period that it desires to defend the indemnified Party against the Third-Party Claim, then (except as provided below) the indemnifying Party shall defend, at its sole cost and expense, the indemnified Party by appropriate proceedings, shall use commercially reasonable efforts to settle or prosecute the proceedings to a final conclusion in such a manner as to avoid the indemnified Party becoming subject to any injunctive or other equitable order for relief, and shall control the conduct of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party defense. The indemnifying party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly not be entitled to assume the defense of such action only any Third-Party Claim if the Third-Party Claim seeks any relief other than money damages, including any type of injunctive or other equitable relief. If the indemnified Party shall have reasonably concluded that there are legal defenses or rights available to it that are in conflict with those available to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified indemnifying Party, then the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified indemnified Party shall have the right to employ select one law firm (in addition to local counsel) reasonably satisfactory to the indemnifying Party to act at the indemnifying Party’s expense as separate counsel in any such action or claim and counsel, on behalf of the indemnified Party. If the indemnified Party desires to participate in the defense thereofin, but the fees not control, any other defense or settlement, it may do so at its sole cost and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available subject to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Partyforegoing sentence). So long as the Indemnifying indemnifying Party is reasonably contesting defending in good faith any such claim in good faithThird-Party Claim, the Indemnified indemnified Party shall not pay settle such Third-Party Claim without the consent of the indemnifying Party, which consent shall not be unreasonably withheld or delayed.
(iv) The indemnifying Party will not consent to the entry of any judgment or enter into any compromise or settlement with respect to a Third-Party Claim without the prior written consent of the indemnified Party, which consent shall not be unreasonably withheld or delayed.
(v) If the indemnifying Party fails to notify the indemnified Party in writing within the Notice Period that the indemnifying Party desires to defend the Third-Party Claim, or if the indemnifying Party gives such notice but fails to defend or settle any such claim. Notwithstanding the foregoingThird-Party Claim, or if the Indemnified Third-Party shall Claim seeks recourse or relief or would involve proceedings that would affect the indemnified Party in a materially adverse manner other than as a result of monetary damages for which it would be entitled to indemnification hereunder, then the indemnified Party will have the right to pay or settle any such claimdefend, provided that in such event it shall waive any right to indemnity therefor by at the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt sole cost and expense of the Indemnified indemnifying Party’s notice , such Third-Party Claim to a final conclusion or to settle such Third-Party Claim at the discretion of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except (with the consent of the Indemnified indemnifying Party, enter into which consent shall not be unreasonably withheld or delayed). The indemnifying Party may elect to participate in such proceedings, negotiations or defense at any time at its own expense. The indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claimthereof.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Cortendo AB), Asset Purchase Agreement (Cortendo AB)
Third Party Claims. If a claim by (a) In the event an Indemnified Party becomes aware of a third party is made against any Indemnified Party, and if such claim that the Indemnified Party intends to seek indemnity with respect thereto under Section 15reasonably believes may result in a demand for indemnification hereunder (a “Third Party Claim”), such the Indemnified Party shall promptly notify the Indemnifying Party Parties of such claimsclaim, and the Indemnifying Parties shall be entitled, at their expense, to participate in, but not to determine or conduct, the defense of such claim; provided, however, that no delay on the failure to so notify part of the Indemnified Party in notifying the Indemnifying Parties shall not relieve the Indemnifying Party of its obligations hereunder, except Parties from any obligation hereunder unless (and then solely to the extent extent) the Indemnifying Parties are thereby prejudiced.
(b) The Indemnifying Parties will have the right to defend the Indemnified Party against the Third Party Claim with counsel of their choice reasonably satisfactory to the Indemnified Party so long as (i) the Indemnifying Parties notify the Indemnified Party in writing within 30 business days after the Indemnified Party has given notice of the Third Party Claim that the Indemnifying Parties will indemnify the Indemnified Party is actually from and materially prejudiced thereby. The against the entirety of any Damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim, (ii) the Indemnifying Parties provide the Indemnified Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably with evidence acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled Parties will have the financial resources to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief defend against the Indemnified Party; Third Party Claim and fulfill their indemnification obligations hereunder, (iii) the Indemnified Third Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party Claim involves only monetary damages and the Indemnified Party; does not seek an injunction or other equitable relief, (iv) upon petition by settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified PartyParties, the appropriate court rules that the Indemnifying Party failed likely to establish a precedential custom or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be practice adverse to the continuing business interests of the Indemnified Party. So long as , and (v) the Indemnifying Party is reasonably contesting any such claim in good faith, Parties conduct the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt defense of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Third Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this AgreementClaim actively and diligently. The Indemnifying Party shall not, except with Parties will not consent to the entry of a judgment or enter into any settlement agreement without the prior written consent of the Indemnified Party, unless such judgment or settlement includes a full release of the Indemnified Party in respect of all indemnifiable Damages resulting therefrom, related thereto or arising therefrom.
(c) In the event any of the conditions in Section 9.5(b) above is or becomes unsatisfied, however, (i) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Agreement and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of to, the Third Party Claim in any judgment. The Indemnifying Party manner it may deem appropriate (and the Indemnified Party shall cooperate with each other in all reasonable respects need not consult with, or obtain any consent from, the Indemnifying Parties in connection with the defense of any claimtherewith), including making available records relating to such claim and furnishing, without expense to (ii) the Indemnifying Party and/or its counsel, such employees of Parties will reimburse the Indemnified Party as may be reasonably necessary promptly and periodically for the preparation costs of defending against the defense of Third Party Claim (including reasonable legal fees and expenses), and (iii) the Indemnifying Parties will remain responsible for any such claim Damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or for testimony as witnesses caused by the Third Party Claim to the fullest extent provided in any proceeding relating to such claimthis Article IX.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (SolarWinds, Inc.)
