Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b), it shall have the 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. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall be at the expense of the Indemnified Party.
Appears in 15 contracts
Samples: Membership Interest Purchase Agreement (Bitech Technologies Corp), Stock Exchange Agreement (Reliance Global Group, Inc.), Membership Interest Purchase Agreement (Bitech Technologies Corp)
Third Party Claims. If any (i) In the event that the Indemnified Party receives notice or otherwise learns of the assertion by a person or commencement of any Action made or brought by any Person entity who is not a party to this Agreement Party hereto or an a Subsidiary or Affiliate of a party to this Agreement Party hereto of any claim or a Representative the commencement of the foregoing any action (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is may be obligated to provide indemnification under this AgreementArticle X, the Indemnified Party shall will give written notification to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty of the Third-Party Claim. Such notification will be given within fifteen (3015) calendar days after receipt by the Indemnified Party of such notice of such Third-Party Claim. The failure , will be accompanied by reasonable supporting documentation submitted by such third party (to give the extent then in the possession of the Indemnified Party) and will describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such prompt written notice shall notThird-Party Claim and the amount of the claimed Damages; provided, however, that no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party will relieve the Indemnifying Party of its indemnification obligations, any liability for Damages or obligation hereunder except and only to the extent that the Indemnifying Party forfeits rights of any Damages caused by or defenses by reason arising out of such failure. Such notice by Within twenty (20) days after delivery of such notification, the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate inmay, or by giving upon written notice thereof to the Indemnified Party, to assume control of the defense of any such Third-Party Claim at with counsel reasonably satisfactory to the Indemnified Party. During any period in which the Indemnifying Party’s expense and by the Indemnifying Party’s own counselParty has not so assumed control of such defense, and the Indemnified Party shall cooperate will control such defense.
(ii) The Party not controlling such defense (the “Non-controlling Party”) may participate therein at its own expense.
(iii) The Party controlling such defense (the “Controlling Party”) will keep the Non-controlling Party reasonably advised of the status of such Third-Party Claim and the defense thereof and will consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party will furnish the Controlling Party with such Information as it may have with respect to such Third-Party Claim (including copies of any summons, complaint or other pleading which may have been served on such Party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and will otherwise cooperate with and assist the Controlling Party in such defense. In the event that the Indemnifying Party assumes the defense of any such Third-Party Claim.
(iv) The Indemnifying Party will not agree to any settlement of, subject to Section 8.03(b)or the entry of any judgment arising from, it shall have the 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 without the name and on behalf prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnified Party will not be required if (A) the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment, and (B) such settlement or judgment includes a full, complete and unconditional release of the Indemnified Party from further Liability. The Indemnified Party shall have will not agree to any settlement of, or the right to participate in the defense entry of any judgment arising from, any such Third-Party Claim with counsel selected by it subject to without the prior written consent of the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall which consent will not be at the expense of the Indemnified Partyunreasonably withheld or delayed.
Appears in 10 contracts
Samples: Corporate and Transitional Services Agreement (New Remy Holdco Corp.), Corporate and Transitional Services Agreement (New Remy Holdco Corp.), Corporate and Transitional Services Agreement (Lender Processing Services, Inc.)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action action, suit, claim or other legal proceeding made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b7.5(b), it shall have the 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. The Indemnified Party shall have the right 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 control the defense thereof. If the Indemnifying Party elects not to compromise or defend such Third-Party Claim or fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, provided that the fees Indemnified Party may, subject to Section 7.5(b), pay, compromise, defend such Third-Party Claim and disbursements seek indemnification for any and all Losses based upon, arising from or relating to such Third-Party Claim. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available records relating to such Third-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such counsel shall be at the expense of the Indemnified PartyThird-Party Claim.
Appears in 8 contracts
Samples: Series B Preferred Shares Purchase Agreement (360 Finance, Inc.), Series B Preferred Shares Purchase Agreement (360 Finance, Inc.), Series B Preferred Shares Purchase Agreement (360 Finance, Inc.)
Third Party Claims. If any (i) In the event that the Indemnified Party receives notice or otherwise learns of the assertion by a person or commencement of any Action made or brought by any Person entity who is not a party to this Agreement Party hereto or an a Subsidiary or Affiliate of a party to this Agreement Party hereto of any claim or a Representative the commencement of the foregoing any action (a “"Third-Party Claim”") against such Indemnified Party with respect to which the Indemnifying Party is may be obligated to provide indemnification under this AgreementArticle X, the Indemnified Party shall will give written notification to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty of the Third-Party Claim. Such notification will be given within fifteen (3015) calendar days after receipt by the Indemnified Party of such notice of such Third-Party Claim. The failure , will be accompanied by reasonable supporting documentation submitted by such third party (to give the extent then in the possession of the Indemnified Party) and will describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such prompt written notice shall notThird-Party Claim and the amount of the claimed Damages; provided, however, that no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party will relieve the Indemnifying Party of its indemnification obligations, any liability for Damages or obligation hereunder except and only to the extent that the Indemnifying Party forfeits rights of any Damages caused by or defenses by reason arising out of such failure. Such notice by Within twenty (20) days after delivery of such notification, the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate inmay, or by giving upon written notice thereof to the Indemnified Party, to assume control of the defense of any such Third-Party Claim at with counsel reasonably satisfactory to the Indemnified Party. During any period in which the Indemnifying Party’s expense and by the Indemnifying Party’s own counselParty has not so assumed control of such defense, and the Indemnified Party shall cooperate will control such defense.
(ii) The Party not controlling such defense (the "Non-controlling Party") may participate therein at its own expense.
(iii) The Party controlling such defense (the "Controlling Party") will keep the Non-controlling Party reasonably advised of the status of such Third-Party Claim and the defense thereof and will consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party will furnish the Controlling Party with such Information as it may have with respect to such Third-Party Claim (including copies of any summons, complaint or other pleading which may have been served on such Party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and will otherwise cooperate with and assist the Controlling Party in such defense. In the event that the Indemnifying Party assumes the defense of any such Third-Party Claim.
(iv) The Indemnifying Party will not agree to any settlement of, subject to Section 8.03(b)or the entry of any judgment arising from, it shall have the 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 without the name and on behalf prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnified Party will not be required if (A) the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment, and (B) such settlement or judgment includes a full, complete and unconditional release of the Indemnified Party from further Liability. The Indemnified Party shall have will not agree to any settlement of, or the right to participate in the defense entry of any judgment arising from, any such Third-Party Claim with counsel selected by it subject to without the prior written consent of the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall which consent will not be at the expense of the Indemnified Partyunreasonably withheld or delayed.
Appears in 6 contracts
Samples: Corporate Services Agreement (Fidelity National Title Group, Inc.), Corporate Services Agreement (Fidelity National Title Group, Inc.), Corporate Services Agreement (Fidelity National Title Group, Inc.)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the An Indemnified Party shall give written notice to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar within 10 days after receipt it has actual knowledge of commencement or assertion of any Third Party Claim in respect of which the Indemnified Party may seek indemnification under Section 9.12. Such notice shall state the nature and basis of such notice of such Third-Third Party ClaimClaim and the events and the amounts thereof to the extent known. The Any failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that the Indemnifying Party may have to the Indemnified Party under this Article IX, except to the extent the failure to give such prompt written notice shall notmaterially and adversely prejudices the Indemnifying Party. In case any such action, howeverproceeding or claim is brought against an Indemnified Party, relieve so long as it has acknowledged in writing to the Indemnified Party that it is liable for such Third Party Claim pursuant to this Section 9.15, the Indemnifying Party shall be entitled to participate in and, unless in the reasonable judgment of the Indemnified Party a conflict of interests between it and the Indemnifying Party may exist in respect of such Third Party Claim or such Third Party Claim entails a material risk of criminal penalties or civil fines or non monetary sanctions being imposed on the Indemnified Party or a risk of materially adversely affecting the Indemnified Party’s business (a “Third Party Penalty Claim”), to assume the defense thereof, with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party, and after notice from the Indemnifying Party to the Indemnified Party of its indemnification obligationselection so to assume the defense thereof, except and only the Indemnifying Party shall not be liable to the extent Indemnified Party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation or defending such portion of such Third Party Penalty Claim; provided nothing contained herein shall permit Clean Technologies to control or participate in any Tax contest or dispute involving a Class B Member or any Affiliate of a Class B Member, or permit a Class B Member to control or participate in any Tax contest or dispute involving any Affiliate of Clean Technologies other than the Company and the Project Company; and, provided, further, the Parties agree that the handling of any Tax contests involving the Company will be governed by Section 7.7. In the event that (i) the Indemnifying Party advises an Indemnified Party that the Indemnifying Party forfeits rights will not contest a claim for indemnification hereunder, (ii) the Indemnifying Party fails, within 30 days of receipt of any indemnification notice to notify, in writing, such Indemnified Party of its election, to defend, settle or defenses by reason compromise, at its sole cost and expense, any such Third Party Claim (or discontinues its defense at any time after it commences such defense) or (iii) in the reasonable judgment of the Indemnified Party, a conflict of interests between it and the Indemnifying Party exists in respect of such failure. Such notice by Third Party Claim or the action or claim is a Third Party Penalty Claim, then the Indemnified Party shall describe the Third-may, at its option, defend, settle or otherwise compromise or pay such action or claim or Third Party Claim in reasonable detaileach case, shall include copies of all material written evidence thereof at the sole cost and shall indicate the estimated amount, if reasonably practicable, expense of the Loss that has been Indemnifying Party. In any event, unless and until the Indemnifying Party elects in writing to assume and does so assume the defense of any such claim, proceeding or may action, the Indemnifying Party shall be sustained liable for the Indemnified Party’s reasonable costs and expenses arising out of the defense, settlement or compromise of any such action, claim or proceeding. The Indemnified Party shall cooperate to the extent commercially reasonable with the Indemnifying Party in connection with any negotiation or defense of any such action or claim by the Indemnified Indemnifying Party. The Indemnifying Party shall have keep the right Indemnified Party fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. If the Indemnifying Party elects to defend any such action or claim, then the Indemnified Party shall be entitled to participate inin such defense with counsel of its choice at its sole cost and expense unless otherwise specified herein; provided that any such participation of the Indemnified Party shall be at the Indemnifying Party’s sole cost and expense to the extent such participation relates to a Third Party Penalty Claim. If the Indemnifying Party does not assume such defense, the Indemnified Party shall keep the Indemnifying Party apprised at all times as to the status of the defense; provided, however, that the failure to keep the Indemnifying Party so informed shall not affect the obligations of the Indemnifying Party hereunder. The Indemnifying Party shall not be liable for any settlement of any action, claim or proceeding effected without its written consent; provided, however, that the Indemnifying Party shall not unreasonably withhold, delay or condition any such consent. Notwithstanding anything in this Section 9.15 to the contrary, the Indemnifying Party shall not, without the Indemnified Party’s prior written consent, (i) settle or compromise any claim or consent to entry of judgment in respect thereof which involves any condition other than payment of money by the Indemnified Party, (ii) settle or compromise any claim or consent to entry of judgment in respect thereof without first demonstrating to Indemnified Party the ability to pay such claim or judgment, or (iii) settle or compromise any claim or consent to entry of judgment in respect thereof that does not include, as an unconditional term thereof, the giving by giving written notice the claimant or the plaintiff to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense a full and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate complete release from all liability in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b), it shall have the 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. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements respect of such counsel shall be at the expense of the Indemnified Partyclaim.
Appears in 6 contracts
Samples: Limited Liability Company Agreement (Bloom Energy Corp), Limited Liability Company Agreement (Bloom Energy Corp), Limited Liability Company Agreement (Bloom Energy Corp)
Third Party Claims. (a) If any Indemnified Party receives an Indemnitee shall receive notice or otherwise learn of the assertion by a Person (including any Governmental Authority) that is not a WMB Entity or a WPX Entity of any claim (including environmental claims and demands or requests for investigation or remediation of contamination) or of the commencement by any such Person of any Action made or brought by any Person who is not a party with respect to which an Indemnifying Party may be obligated to provide indemnification to such Indemnitee pursuant to this Agreement or an Affiliate of a party to this any Ancillary Agreement or a Representative of the foregoing (collectively, a “Third-Party Claim”) against ), such Indemnified Party with respect to which the Indemnitee shall give such Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereofthereof as soon as promptly practicable, but in any event not no later than thirty (30) calendar 30 days after receipt of such notice becoming aware of such Third-Party Claim. The failure to give Any such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detaildetail and contain written correspondence received from the third party that relates to the Third-Party Claim. Notwithstanding the foregoing, the failure of any Indemnitee to give notice as provided in this Section 7.5(a) shall include copies not relieve the related Indemnifying Party of all material written evidence thereof its obligations under this Article VII, except to the extent that such Indemnifying Party is prejudiced by such failure to give notice.
(b) With respect to any Third-Party Claim:
(i) Unless the parties otherwise agree, within 30 days after the receipt of notice from an Indemnitee in accordance with Section 7.5(a), an Indemnifying Party shall defend (and, unless the Indemnifying Party has specified any reservations or exceptions, seek to settle or compromise), at such Indemnifying Party’s own cost and shall indicate the estimated amountexpense and by such Indemnifying Party’s own counsel, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Partyany Third-Party Claim. The Indemnifying Party applicable Indemnitee shall have the right to employ separate counsel and to participate inin (but not control) the defense, compromise, or settlement thereof, but the fees and expenses of such counsel shall be the expense of such Indemnitee. Notwithstanding the foregoing, the Indemnifying Party shall be liable for the fees and expenses of counsel employed by giving written the Indemnitee (A) for any period during which the Indemnifying Party has not assumed the defense of such Third-Party Claim (other than during any period in which the Indemnitee shall have failed to give notice of the Third-Party Claim in accordance with Section 7.5(a)) or (B) to the Indemnified Partyextent that such engagement of counsel is as a result of a conflict of interest, as reasonably determined by the Indemnitee acting in good faith.
(ii) No Indemnifying Party shall consent to assume the defense entry of any judgment or enter into any settlement of any Third-Party Claim at without the consent of the applicable Indemnitee; provided, however, that such Indemnitee shall be required to consent to such entry of judgment or to such settlement that the Indemnifying Party’s expense and by Party may recommend if the judgment or settlement (A) contains no finding or admission of any violation of Law or any violation of the rights of any Person, (B) involves only monetary relief which the Indemnifying Party’s own counselParty has agreed to pay and could not reasonably be expected to have a significant adverse impact (financial or non-financial) on the Indemnitee, including a significant adverse impact on the rights, obligations, operations, standing or reputation of the Indemnitee (or any of its Subsidiaries or Affiliates), and (C) includes a full and unconditional release of the Indemnified Party Indemnitee. Notwithstanding the foregoing, in no event shall cooperate in good faith in such defense. In an Indemnitee be required to consent to any entry of judgment or settlement if the event that effect thereof is to permit any injunction, declaratory judgment, other order or other nonmonetary relief to be entered, directly or indirectly, against any Indemnitee.
(c) Whether or not the Indemnifying Party assumes the defense of any a Third-Party Claim, subject to Section 8.03(b)no Indemnitee shall admit any liability with respect to, it shall have the right to take such action as it deems necessary to avoidor settle, disputecompromise or discharge, defend, appeal or make counterclaims pertaining to any such Third-Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to without the Indemnifying Party’s right to control the defense thereofprior written consent, provided that the fees and disbursements of such counsel which consent shall not be at the expense of the Indemnified Partyunreasonably withheld or delayed.
Appears in 5 contracts
Samples: Separation and Distribution Agreement (WPX Energy, Inc.), Separation and Distribution Agreement (Williams Companies Inc), Separation and Distribution Agreement (Williams Companies Inc)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b9.03(b), it shall have the 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. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall be at the expense of the Indemnified Party.
Appears in 5 contracts
Samples: Exchange Agreement (MDWerks, Inc.), Exchange Agreement (Credex Corp), Exchange Agreement (Credex Corp)
Third Party Claims. If any an Indemnified Party receives shall receive notice of the assertion any Action, audit, demand or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing assessment (each, a “Third-Party Claim”) against such Indemnified Party with respect it or which may give rise to which the Indemnifying Party is obligated to provide indemnification a claim for Loss under this AgreementArticle VII, within thirty (30) calendar days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereofCompany, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not; provided, however, relieve that the Indemnifying Party failure to provide such notice shall not release the Company from any of its indemnification obligations, obligations under this Article VII except and only to the extent that the Indemnifying Company is materially prejudiced by such failure and shall not relieve the Company from any other obligation or liability that it may have to any Indemnified Party forfeits rights or defenses by reason of such failureotherwise than under this Article VII. Such notice by If the Company acknowledges in writing its obligation to indemnify the Indemnified Party shall describe the or Indemnified Parties hereunder against any Losses that may result from such Third-Party Claim in reasonable detailClaim, then the Company shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, entitled to assume and control the defense of any such Third-Party Claim at the Indemnifying Party’s its or their expense and by the Indemnifying Party’s own counsel, and through counsel of its or their choice if it or they give notice of such intention to do so to the Indemnified Party or Indemnified Parties, as the case may be, within fourteen (14) calendar days of the receipt of notice from any Indemnified Party of such Third-Party Claim; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the reasonable judgment of the Indemnified Party or Indemnified Parties in its or their sole and absolute discretion for the same counsel to represent both the Indemnified Party or Indemnified Parties and the Company, then the Indemnified Party or Indemnified Parties shall cooperate be entitled to retain its or their own counsel in good faith in such defenseeach jurisdiction for which the Indemnified Party determines counsel is required, at the expense of the Company. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b), it shall have Company exercises the right to take undertake any such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to defense against any such Third-Party Claim as provided above, the Indemnified Party or Indemnified Parties shall cooperate with the Company in such defense and make available to the name Company, at the Company’s expense, all witnesses, pertinent records, materials and on behalf of information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Company. The Similarly, in the event any Indemnified Party is, directly or indirectly, conducting the defense against any such Third-Party Claim, the Company shall have cooperate with the right Indemnified Party or Indemnified Parties in such defense and make available to participate any Indemnified Party, at the Company’s expense, all such witnesses, records, materials and information in the defense of Company’s possession or under the Company’s control relating thereto as is reasonably required by any Indemnified Party. No Third-Party Claim with counsel selected may be settled (i) by it subject any Indemnified Party without the prior written consent of the Company (which shall not be unreasonably withheld or delayed) if the Company acknowledges in writing its or their obligation to indemnify such Indemnified Party hereunder against any Losses that may result from such Third-Party Claim or (ii) by the Indemnifying Party’s right to control Company without the defense thereof, provided that the fees and disbursements of such counsel shall be at the expense prior written consent of the Indemnified Party or Indemnified Parties, except, in the case of (ii) only, where settlement of such Third-Party Claim (A) includes an unconditional release of the Indemnified Party or Indemnified Parties from all liability arising out of such Action, audit, demand or assessment and (B) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party.
Appears in 5 contracts
Samples: Share Subscription Agreement (Origin Agritech LTD), Share Purchase Agreement (China Biologic Products Holdings, Inc.), Share Purchase Agreement (China Biologic Products Holdings, Inc.)
Third Party Claims. (i) If any the Indemnified Party receives notice or otherwise learns of the assertion or commencement of any Action made or brought by any a Person who is not a party to this Agreement member of either Group of any claim or an Affiliate the commencement of a party to this Agreement or a Representative of the foregoing any Action (in each case, a “Third-Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is may be obligated to provide indemnification under this AgreementArticle 8, the Indemnified Party shall give written notification to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days of the Third Party Claim. Such notification shall be given within five Business Days after receipt by the Indemnified Party of such notice of such Third-Third Party Claim. The failure , shall be accompanied by reasonable supporting documentation submitted by such third party (to give the extent then in the possession of the Indemnified Party) and shall describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such prompt written notice shall notThird Party Claim and the amount of the claimed Losses; provided, however, that no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party shall relieve the Indemnifying Party of its indemnification obligations, any Liability or obligation hereunder except and only to the extent that the Indemnifying Party forfeits rights of any Losses caused by or defenses by reason arising out of such failure. Such notice by Within 20 days after delivery of such notification, the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate inmay, or by giving upon written notice thereof to the Indemnified Party, to assume control of the defense of any Third-such Third Party Claim at with counsel reasonably satisfactory to the Indemnified Party. During any period in which the Indemnifying Party has not so assumed control of such defense, the Indemnified Party shall control such defense.
(ii) The Party not controlling such defense (the “Non-Controlling Party’s expense and by ”) may participate therein at its own expense; provided, however, that if the Indemnifying Party’s own counsel, Party assumes control of such defense and the Indemnified Party shall cooperate in good faith in such defense. In concludes, upon the event written opinion of counsel, that the Indemnifying Party assumes and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Claim, the reasonable fees and expenses of separate counsel to the Indemnified Party shall be considered “Losses” for purposes of this Agreement; provided, further, that the Indemnifying Party shall not be responsible for the fees or expenses of more than one legal firm in any single jurisdiction for all of the Indemnified Parties; provided, however, that in the event that such legal firm is conflicted amongst the Indemnified Parties, then the Indemnifying Party shall be responsible for the fees or expenses of up to two legal firms in any single jurisdiction for all of the Indemnified Parties. The Party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party reasonably advised of the status of such Third Party Claim and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such Information as it may have with respect to such Third Party Claim (including copies of any summons, complaint or other pleading that may have been served on such Party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of any Third-such Third Party Claim, subject to Section 8.03(b), it .
(iii) The Indemnifying Party shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining not agree to any settlement of, or the entry of any judgment arising from, any such Third-Third Party Claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnified Party shall not be required if (A) the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment, (B) such settlement or judgment includes a full, complete and unconditional release of the name Indemnified Party from further Liability and (C) such settlement does not create any financial or other obligation on behalf the part of the Indemnified Party. The Indemnified Party shall have not agree to any settlement of, or the right to participate in the defense entry of any Third-judgment arising from, any such Third Party Claim with counsel selected by it subject to without the prior written consent of the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel which consent shall not be at the expense of the Indemnified Partyunreasonably withheld or delayed.
Appears in 5 contracts
Samples: Master Separation Agreement (Photowatt Technologies Inc.), Master Separation Agreement (Photowatt Technologies Inc.), Master Separation Agreement (Photowatt Technologies Inc.)
Third Party Claims. If any (i) In the event that the Indemnified Party receives notice or otherwise learns of the assertion or commencement of any Action made or brought by any a Person who is not a party to this Agreement Party hereto or an a Subsidiary or Affiliate of a party to this Agreement Party hereto of any claim or a Representative the commencement of the foregoing any action (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is may be obligated to provide indemnification under this AgreementArticle X, the Indemnified Party shall will give written notification to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty of the Third-Party Claim. Such notification will be given within fifteen (3015) calendar days after receipt by the Indemnified Party of such notice of such Third-Party Claim. The failure , will be accompanied by reasonable supporting documentation submitted by such third party (to give the extent then in the possession of the Indemnified Party) and will describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such prompt written notice shall notThird-Party Claim and the amount of the claimed Damages; provided, however, that no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party will relieve the Indemnifying Party of its indemnification obligations, any liability for Damages or obligation hereunder except and only to the extent that the Indemnifying Party forfeits rights of any Damages caused by or defenses by reason arising out of such failure. Such notice by Within twenty (20) days after delivery of such notification, the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate inmay, or by giving upon written notice thereof to the Indemnified Party, to assume control of the defense of any such Third-Party Claim at with counsel reasonably satisfactory to the Indemnified Party. During any period in which the Indemnifying Party’s expense and by the Indemnifying Party’s own counselParty has not so assumed control of such defense, and the Indemnified Party shall cooperate will control such defense.
(ii) The Party not controlling such defense (the “Non-controlling Party”) may participate therein at its own expense.
(iii) The Party controlling such defense (the “Controlling Party”) will keep the Non-controlling Party reasonably advised of the status of such Third-Party Claim and the defense thereof and will consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party will furnish the Controlling Party with such information as it may have with respect to such Third-Party Claim (including copies of any summons, complaint or other pleading which may have been served on such Party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and will otherwise cooperate with and assist the Controlling Party in such defense. In the event that the Indemnifying Party assumes the defense of any such Third-Party Claim.
(iv) The Indemnifying Party will not agree to any settlement of, subject to Section 8.03(b)or the entry of any judgment arising from, it shall have the 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 without the name and on behalf prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnified Party will not be required if (A) the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment, and (B) such settlement or judgment includes a full, complete and unconditional release of the Indemnified Party from further liability. The Indemnified Party shall have will not agree to any settlement of, or the right to participate in the defense entry of any judgment arising from, any such Third-Party Claim with counsel selected by it subject to without the prior written consent of the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall which consent will not be at the expense of the Indemnified Partyunreasonably withheld or delayed.
Appears in 4 contracts
Samples: Reorganization Agreement (Cannae Holdings, Inc.), Reorganization Agreement (Fidelity National Financial, Inc.), Corporate Services Agreement (Cannae Holdings, Inc.)
Third Party Claims. If any Indemnified Party receives notice (i) Promptly after receipt by the Parent Corporation or the Shareholders' Representative (on behalf of the assertion Shareholder Group), as applicable, of notice by a third party (including any court or Governmental Entity) of any complaint or the commencement of any Action made audit, investigation, action or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party proceeding with respect to which the Indemnifying Party is obligated applicable party may be entitled to provide claim indemnification under for any iPrint Losses or any Wood Losses, as the case may be (the party so entitled to received payment sometimes referred to herein for this Agreementpurpose as the "Indemnified Party"), the Indemnified Party shall give the Indemnifying Party reasonably prompt will provide ----------------- written notice thereofthereof to the party from whom it claims entitlement to indemnification under Section 8.2 or Section 8.3, but in any event not later than thirty as the case may be (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall notthe "Indemnifying Party"); provided, however, that the failure to so notify the ------------------ Indemnifying Party will relieve the Indemnifying Party of its indemnification obligationsfrom liability under this Agreement with respect to the claim only if, except and only to the extent that that, the failure to notify the Indemnifying Party forfeits results in the loss or forfeiture by the Indemnifying Party of rights and defenses that otherwise would have been available to the Indemnifying Party with respect to the complaint, audit, investigation, action or defenses proceeding.
(ii) If the Indemnifying Party so elects, by reason of such failure. Such written notice by given to the Indemnified Party shall describe within ten (10) days after the Third-Party Claim in reasonable detail, shall include copies effective date of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by notice from the Indemnified Party. The Party referred to in subparagraph (i), the Indemnifying Party shall have the right to participate inassume the defense of the audit, investigation, action or by giving written proceeding, provided that the notice of election includes the Indemnifying Party's assumption of full responsibility for any iPrint Losses or Wood Losses of the Indemnified Party (as the case may be) resulting therefrom, and undertaking to employ counsel reasonably satisfactory to the Indemnified PartyParty and to pay the fees and disbursements of such counsel. If the Shareholder Group shall be the Indemnifying Party and the Shareholders' Representative shall so elect on its behalf, then upon request by the Shareholders' Representative, Parent Corporation shall advance to the Shareholders' Representative, for use to advance or pay fees and disbursements of legal counsel in the defense of the matter, the amount of up to $300,000 (in the aggregate, for any and all claims) at the discretion of the Shareholders' Representative. The amount so advanced to the Shareholders' Representative by the Parent Corporation shall comprise a iPrint Loss subject to indemnification under Section 8.2.
(iii) If the Indemnifying Party declines or fails to assume the defense of any Thirdthe audit, investigation, action or proceeding within the ten 10-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate day period as provided in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(bsubparagraph (ii), it shall have then the 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. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with employ counsel selected by to represent or defend it subject to the Indemnifying Party’s right to control the defense thereof, provided that the therein. The reasonable fees and disbursements of such counsel as incurred shall be at the expense comprise iPrint Losses or Wood Losses of the Indemnified Party, as the case may be, subject to payment by the applicable Indemnifying Party; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one (1) counsel for all Indemnified Parties in any jurisdiction in any single audit, investigation, action or proceeding.
(iv) The Indemnifying Party or the Indemnified Party, as the case may be, whichever assumes the defense of the audit, investigation, action or proceeding, shall at all times use reasonable efforts to keep the other reasonably apprised of the status of the defense of the matter, and each shall cooperate in good faith with the other with respect to the defense thereof. The party not assuming defense of the matter shall retain the right to participate and to retain its own separate counsel therein at its own expense.
Appears in 4 contracts
Samples: Agreement and Plan of Reorganization (Information Technology Ventures Lp/Ca), Agreement and Plan of Reorganization (Farros Royal), Agreement and Plan of Reorganization (Iprint Com Inc)
Third Party Claims. If any (i) In the event that the Indemnified Party receives notice or otherwise learns of the assertion by a person or commencement of any Action made or brought by any Person entity who is not a party to this Agreement Party hereto or an Affiliate a Subsidiary of a party to this Agreement Party hereto of any claim or a Representative the commencement of the foregoing any action (a “"Third-Party Claim”") against such Indemnified Party with respect to which the Indemnifying Party is may be obligated to provide indemnification under this AgreementArticle X, the Indemnified Party shall will give written notification to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty of the Third-Party Claim. Such notification will be given within fifteen (3015) calendar days after receipt by the Indemnified Party of such notice of such Third-Party Claim. The failure , will be accompanied by reasonable supporting documentation submitted by such third party (to give the extent then in the possession of the Indemnified Party) and will describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such prompt written notice shall notThird-Party Claim and the amount of the claimed Damages; provided, however, that no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party will relieve the Indemnifying Party of its indemnification obligations, any liability for Damages or obligation hereunder except and only to the extent that the Indemnifying Party forfeits rights of any Damages caused by or defenses by reason arising out of such failure. Such notice by Within twenty (20) days after delivery of such notification, the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate inmay, or by giving upon written notice thereof to the Indemnified Party, to assume control of the defense of any such Third-Party Claim at with counsel reasonably satisfactory to the Indemnified Party. During any period in which the Indemnifying Party’s expense and by the Indemnifying Party’s own counselParty has not so assumed control of such defense, and the Indemnified Party shall cooperate will control such defense.
(ii) The Party not controlling such defense (the "Non-controlling Party") may participate therein at its own expense.
(iii) The Party controlling such defense (the "Controlling Party") will keep the Non-controlling Party reasonably advised of the status of such Third-Party Claim and the defense thereof and will consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party will furnish the Controlling Party with such Information as it may have with respect to such Third-Party Claim (including copies of any summons, complaint or other pleading which may have been served on such Party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and will otherwise cooperate with and assist the Controlling Party in such defense. In the event that the Indemnifying Party assumes the defense of any such Third-Party Claim.
(iv) The Indemnifying Party will not agree to any settlement of, subject to Section 8.03(b)or the entry of any judgment arising from, it shall have the 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 without the name and on behalf prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnified Party will not be required if (A) the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment, and (B) such settlement or judgment includes a full, complete and unconditional release of the Indemnified Party from further Liability. The Indemnified Party shall have will not agree to any settlement of, or the right to participate in the defense entry of any judgment arising from, any such Third-Party Claim with counsel selected by it subject to without the prior written consent of the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall which consent will not be at the expense of the Indemnified Partyunreasonably withheld or delayed.
Appears in 4 contracts
Samples: Corporate Services Agreement (Fidelity National Title Group, Inc.), Corporate Services Agreement (Fidelity National Title Group, Inc.), Corporate Services Agreement (Fidelity National Title Group, Inc.)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action action, suit, claim or other legal proceeding made or brought by any Person who is not a party to this Agreement or an Affiliate of a party Party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall will not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall must describe the Third-Party Claim in reasonable detail, shall must include copies of all material written evidence thereof thereof, and shall indicate must specify 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 the right to may participate in, or by giving written notice to the Indemnified Party, to may assume the defense of of, any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and in which case the Indemnified Party shall cooperate in good faith in such defense. In the event that If the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b9.05(b), it shall have the right to may 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. The Indemnified Party shall have the right to may, at its own cost and expense, participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof. If the Indemnifying Party elects not to compromise or defend such Third-Party Claim or fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, provided that the fees Indemnified Party may, subject to Section 9.05(b), pay, compromise, defend such Third-Party Claim and disbursements seek indemnification for any and all Losses based upon, arising from or relating to such Third-Party Claim. The Parties shall cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available (subject to the provisions of Section 6.05) records relating to such counsel shall be at Third-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the expense defending Party, management employees of the Indemnified Partynon-defending Party as may be reasonably necessary for the preparation of the defense of the Third-Party Claim.
Appears in 4 contracts
Samples: Framework Agreement (Via Optronics AG), Framework Agreement (Via Optronics AG), Framework Agreement (Via Optronics AG)
Third Party Claims. If any (i) In the event that the Indemnified Party receives notice or otherwise learns of the assertion or commencement of any Action made or brought by any a Person who is not a party to this Agreement Party hereto or an a Subsidiary or Affiliate of a party to this Agreement Party hereto of any claim or a Representative the commencement of the foregoing any action (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is may be obligated to provide indemnification under this AgreementArticle X, the Indemnified Party shall will give written notification to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty of the Third-Party Claim. Such notification will be given within fifteen (3015) calendar days after receipt by the Indemnified Party of such notice of such Third-Party Claim. The failure , will be accompanied by reasonable supporting documentation submitted by such third party (to give the extent then in the possession of the Indemnified Party) and will describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such prompt written notice shall notThird-Party Claim and the amount of the claimed Damages; provided, however, that no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party will relieve the Indemnifying Party of its indemnification obligations, any liability for Damages or obligation hereunder except and only to the extent that the Indemnifying Party forfeits rights of any Damages caused by or defenses by reason arising out of such failure. Such notice by Within twenty (20) days after delivery of such notification, the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate inmay, or by giving upon written notice thereof to the Indemnified Party, to assume control of the defense of such Third- Party Claim with counsel reasonably satisfactory to the Indemnified Party. During any period in which the Indemnifying Party has not so assumed control of such defense, the Indemnified Party will control such defense.
(ii) The Party not controlling such defense (the “Non-controlling Party”) may participate therein at its own expense.
(iii) The Party controlling such defense (the “Controlling Party”) will keep the Non-controlling Party reasonably advised of the status of such Third- Party Claim and the defense thereof and will consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party will furnish the Controlling Party with such Information as it may have with respect to such Third-Party Claim at (including copies of any summons, complaint or other pleading which may have been served on such Party and any written claim, demand, invoice, billing or other document evidencing or asserting the Indemnifying Party’s expense same) and by will otherwise cooperate with and assist the Indemnifying Party’s own counsel, and the Indemnified Controlling Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any such Third-Party Claim.
(iv) The Indemnifying Party will not agree to any settlement of, subject to Section 8.03(b)or the entry of any judgment arising from, it shall have the 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 without the name and on behalf prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnified Party will not be required if (A) the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment, and (B) such settlement or judgment includes a full, complete and unconditional release of the Indemnified Party from further liability. The Indemnified Party shall have will not agree to any settlement of, or the right to participate in the defense entry of any judgment arising from, any such Third-Party Claim with counsel selected by it subject to without the prior written consent of the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall which consent will not be at the expense of the Indemnified Partyunreasonably withheld or delayed.
Appears in 4 contracts
Samples: Reverse Corporate Services Agreement (F&G Annuities & Life, Inc.), Corporate Services Agreement (F&G Annuities & Life, Inc.), Corporate Services Agreement (F&G Annuities & Life, Inc.)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b5.04(b), it shall have the 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. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall be at the expense of the Indemnified Party.
Appears in 4 contracts
Samples: Asset Purchase Agreement (MDWerks, Inc.), Product Purchase Agreement (Sustainable Green Team, Ltd.), Asset Purchase Agreement (MDWerks, Inc.)
Third Party Claims. If any (i) In the event that the Indemnified Party receives notice or otherwise learns of the assertion or commencement of any Action made or brought by any a Person who is not a party to this Agreement member of either Group of any claim or an Affiliate the commencement of a party to this Agreement or a Representative of the foregoing any Action (collectively, a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is may be obligated to provide indemnification under this AgreementArticle 8, the Indemnified Party shall will give written notification to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty of the Third-Party Claim. Such notification will be given within five (305) calendar days after receipt by the Indemnified Party of such notice of such Third-Party Claim. The failure , will be accompanied by reasonable supporting documentation submitted by such third party (to give the extent then in the possession of the Indemnified Party) and will describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such prompt written notice shall notThird-Party Claim and the amount of the claimed Damages; provided, however, that no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party will relieve the Indemnifying Party of its indemnification obligations, any Liability or obligation hereunder except and only to the extent that the Indemnifying Party forfeits rights of any Damages caused by or defenses by reason arising out of such failure. Such notice by Within twenty (20) days after delivery of such notification, the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate inmay, or by giving upon written notice thereof to the Indemnified Party, to assume control of the defense of any such Third-Party Claim at with counsel reasonably satisfactory to the Indemnified Party. During any period in which the Indemnifying Party has not so assumed control of such defense, the Indemnified Party will control such defense.
(ii) The party not controlling such defense (the “Non-controlling Party’s expense and by ”) may participate therein at its own expense; provided, however, that if the Indemnifying Party’s own counsel, Party assumes control of such defense and the Indemnified Party shall cooperate in good faith in such defense. In concludes, upon the event written opinion of counsel, that the Indemnifying Party assumes and the defense of any Indemnified Party have conflicting interests or different defenses available with respect to such Third-Party Claim, subject the reasonable fees and expenses of counsel to Section 8.03(b), it shall have the right to take Indemnified Party will be considered “Damages” for purposes of this Agreement. The party controlling such action defense (the “Controlling Party”) will keep the Non-controlling Party reasonably advised of the status of such Third-Party Claim and the defense thereof and will consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party will furnish the Controlling Party with such Information as it deems necessary may have with respect to avoidsuch Third-Party Claim (including copies of any summons, disputecomplaint or other pleading which may have been served on such party and any written claim, defenddemand, appeal invoice, billing or make counterclaims pertaining other document evidencing or asserting the same) and will otherwise cooperate with and assist the Controlling Party in the defense of such Third-Party Claim.
(iii) The Indemnifying Party will not agree to any settlement of, or the entry of any judgment arising from, any such Third-Party Claim in without the name and on behalf prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnified Party will not be required if (A) the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment, and (B) such settlement or judgment includes a full, complete and unconditional release of the Indemnified Party from further Liability. The Indemnified Party shall have will not agree to any settlement of, or the right to participate in the defense entry of any judgment arising from, any such Third-Party Claim with counsel selected by it subject to without the prior written consent of the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall which consent will not be at the expense of the Indemnified Partyunreasonably withheld or delayed.
Appears in 4 contracts
Samples: Master Separation and Distribution Agreement, Master Separation and Distribution Agreement (Freescale Semiconductor Inc), Master Separation and Distribution Agreement (Freescale Semiconductor Inc)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses or is otherwise prejudiced by reason of such failure. Such notice by the Indemnified Party shall shall, to the extent reasonably practicable, describe the Third-Party Claim in reasonable specific detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, amount of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate inin or, or by giving written notice to the Indemnified PartyParty within 10 Business Days of the notice described in the previous clause, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. If the Indemnified Party shall have determined in good faith that (a) an actual or likely conflict of interest makes representation of the Indemnifying Party and the Indemnified Party by the same counsel inappropriate, (b) that there may be available to the Indemnified Party one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect of such Third-Party Claim or (c) the conduct of the defense or any proposed settlement of such Third-Party Claim would reasonably be expected to affect adversely the Indemnified Party’s Tax liability, the Indemnified Party shall have the right, upon notice to Indemnifying Party, to engage separate counsel and to control the defense of such Third-Party Claim with respect to such matters, and the reasonable fees and expenses of such separate counsel shall be borne by the Indemnifying Party. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b7.05(b), it shall have the 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 with the Indemnified Party’s prior written consent. The Indemnified Party shall have the right 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 control the defense thereof. If the Indemnifying Party elects not to pay, provided that settle, or defend such Third-Party Claim, the Indemnified Party may, subject to Section 7.05(b), pay, settle, or defend such Third-Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third-Party Claim. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available (subject to the provisions of Section 5.09) records relating to such Third-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third-Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control or consent to the defense or settlement of (and shall pay the reasonable fees and disbursements expenses of such counsel retained by the Indemnified Party with respect to), and the Indemnified Party shall be at entitled to have control over the expense defense or settlement of, any Third-Party Claim that (i) seeks non-monetary relief (except where non-monetary relief is merely incidental to a primary claim or claims for monetary damages), (ii) involves criminal or quasi-criminal allegations, (iii) involves a claim with a Governmental Authority or a key customer, key supplier or regulator of the Indemnified Party, (iv) as to which the Indemnified Party reasonably believes an adverse determination would result in Losses that would exceed the limitation on the right of the Indemnified Party to recovery contained in this Article VII or (v) if in the reasonable opinion of counsel to the Indemnified Party the Indemnifying Party has conflicting or adverse interests or is also a party and joint representation would be inappropriate or there may be legal defenses available to the Indemnified Party or the Indemnified Party that are different from or additional to those available to the Indemnifying Party.
Appears in 3 contracts
Samples: Stock Purchase Agreement (POSITIVEID Corp), Stock Purchase Agreement (Sanomedics, Inc.), Stock Purchase Agreement (POSITIVEID Corp)
Third Party Claims. If any (i) In the event that the Indemnified Party receives notice or otherwise learns of the assertion or commencement of any Action made or brought by any a Person who is not a party to this Agreement member of either Group of any claim or an Affiliate the commencement of a party to this Agreement any Action or a Representative of the foregoing Proceeding (collectively, a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is may be obligated to provide indemnification under this AgreementArticle VII, the Indemnified Party shall will give written notification to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty of the Third-Party Claim. Such notification will be given within five (305) calendar days Business Days after receipt by the Indemnified Party of such notice of such Third-Party Claim. The failure , will be accompanied by reasonable supporting documentation submitted by such third party (to give the extent then in the possession of the Indemnified Party) and will describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such prompt written notice shall notThird-Party Claim and the amount of the claimed Damages; provided, however, that no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party will relieve the Indemnifying Party of its indemnification obligations, any liability or obligation hereunder except and only to the extent that the Indemnifying Party forfeits rights of any Damages caused by or defenses by reason arising out of such failure. Such notice by Within twenty (20) Business Days after delivery of such notification, the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate inmay, or by giving upon written notice thereof to the Indemnified Party, to assume control of the defense of any such Third-Party Claim at with counsel reasonably satisfactory to the Indemnified Party. During any period in which the Indemnifying Party has not so assumed control of such defense, the Indemnified Party will control such defense.
(ii) The Party not controlling such defense (the “Non-controlling Party’s expense and by ”) may participate therein at its own expense; provided, however, that if the Indemnifying Party’s own counsel, Party assumes control of such defense and the Indemnified Party shall cooperate in good faith in such defense. In the event concludes that the Indemnifying Party assumes and the defense of any Indemnified Party have conflicting interests or different defenses available with respect to such Third-Party Claim, subject the reasonable fees and expenses of one separate counsel to Section 8.03(b), it shall have all Indemnified Parties will be considered “Damages” for purposes of this Agreement. The Party controlling such defense (the right to take “Controlling Party”) will keep the Non-controlling Party reasonably advised of the status of such action Third-Party Claim and the defense thereof and will consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party will furnish the Controlling Party with such information as it deems necessary may have with respect to avoidsuch Third-Party Claim (including copies of any summons, disputecomplaint or other pleading which may have been served on such Party and any written claim, defenddemand, appeal invoice, billing or make counterclaims pertaining other document evidencing or asserting the same) and will otherwise cooperate with and assist the Controlling Party in the defense of such Third-Party Claim.
(iii) The Indemnifying Party will not agree to any settlement of, or the entry of any judgment arising from, any such Third-Party Claim in without the name and on behalf prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnified Party will not be required if (A) the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment, and (B) such settlement or judgment includes a full, complete and unconditional release of the Indemnified Party from further liability. The Indemnified Party shall have will not agree to any settlement of, or the right to participate in the defense entry of any judgment arising from, any such Third-Party Claim with counsel selected by it subject to without the prior written consent of the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall which consent will not be at the expense of the Indemnified Partyunreasonably withheld or delayed.
Appears in 3 contracts
Samples: Contribution and Distribution Agreement (Fidelity National Information Services, Inc.), Contribution and Distribution Agreement (Lender Processing Services, Inc.), Contribution and Distribution Agreement (Lender Processing Services, Inc.)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person person or entity who is not a party to this Agreement or an Affiliate affiliate of a party to this Agreement or a Representative representative of the foregoing (a “Third-"Third Party Claim”") against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) 30 calendar days after receipt of such notice of such Third-Third Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss losses, damages, liabilities, deficiencies, Actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (each, a "Loss") that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Third Party Claim at the Indemnifying Party’s 's expense and by the Indemnifying Party’s 's own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Third Party Claim, subject to Section 8.03(b6.04(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third-Third Party Claim with counsel selected by it subject to the Indemnifying Party’s 's right to control the defense thereof, provided that the . The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. 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, subject to Section 6.04(b), 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. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.
Appears in 3 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Trans Lux Corp), Asset Purchase Agreement (Trans Lux Corp)
Third Party Claims. If any (A) The Indemnified Party receives shall give prompt notice in writing to the Indemnifying Party of the assertion of any claim or the commencement of any Action made suit, action or brought proceeding by any Person who is not a third party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with in respect to of which the Indemnifying Party is obligated to provide indemnification indemnity may be sought under this Agreement, the Indemnified Party . Such notice shall give the Indemnifying Party reasonably prompt written notice thereof, but set forth in any event not later than thirty (30) calendar days after receipt of such notice of reasonable detail such Third-Party ClaimClaim and the basis for indemnification (taking into account the information then available to the Indemnified Party). The failure to give such prompt written notice so notify the Indemnifying Party shall not, however, not relieve the Indemnifying Party of its indemnification obligationsobligations hereunder, except and only to the extent that such failure shall have adversely prejudiced the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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. .
(B) The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b), it shall have the 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. The Indemnified Party shall have the right be entitled to participate in the defense of any Third-Party Claim with counsel selected by it and, subject to the limitations set forth in this Section 8.5, shall be entitled to control and appoint lead counsel for such defense, in each case at its own expense.
(C) If the Indemnifying Party’s Party shall assume the control of the defense of any Third-Party Claim (including the right to control settle any Third-Party Claim) in accordance with the provisions of this Section 8.5 (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Third-Party Claim, if the settlement does not release the Indemnified Party and its Affiliates from all liabilities and obligations with respect to such Third-Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party or any of its Affiliates and (ii) the Indemnified Party shall be entitled to participate in the defense thereof, provided that the of any Third-Party Claim and to employ separate counsel of its choice for such purpose. The fees and disbursements expenses of such separate counsel shall be at the expense of paid by the Indemnified Party.
(D) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third-Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 3 contracts
Samples: Asset Purchase Agreement (iCoreConnect Inc.), Asset Purchase Agreement (iCoreConnect Inc.), Asset Purchase Agreement (iCoreConnect Inc.)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action Claim made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing Third Party (a “Third-Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Third Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Third Party Claim, subject to Section 8.03(b7.5(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right right, at its own cost and expense, to participate in the defense of any Third-Third Party Claim with counsel selected by it it, subject to the Indemnifying Party’s right to control the defense thereof, provided that . If the fees and disbursements of Indemnifying Party elects not to compromise or defend such counsel shall be at the expense of Third Party Claim or fails to promptly notify the Indemnified PartyParty in writing of its election to defend as provided in this Agreement, the Indemnified Party may, subject to Section 7.5(b), pay, compromise or defend such Third Party Claim and, subject to the limitations set forth in this Article VII, seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available (subject to the provisions of Section 5.18) information reasonably available to such Party relating to such Third Party Claim.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Public Service Co of New Hampshire), Purchase and Sale Agreement, Purchase and Sale Agreement
Third Party Claims. If any (i) In the event that the Indemnified Party receives notice or otherwise learns of the assertion by a person or commencement of any Action made or brought by any Person entity who is not a party to this Agreement Party hereto or an a Subsidiary or Affiliate of a party to this Agreement Party hereto of any claim or a Representative the commencement of the foregoing any action (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is may be obligated to provide indemnification under this AgreementSection 9, the Indemnified Party shall will give written notification to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty of the Third-Party Claim. Such notification will be given within fifteen (3015) calendar days after receipt by the Indemnified Party of such notice of such Third-Party Claim. The failure , will be accompanied by reasonable supporting documentation submitted by such third party (to give the extent then in the possession of the Indemnified Party) and will describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such prompt written notice shall notThird-Party Claim and the amount of the claimed Damages; provided, however, that no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party will relieve the Indemnifying Party of its indemnification obligations, any liability for Damages or obligation hereunder except and only to the extent that the Indemnifying Party forfeits rights of any Damages caused by or defenses by reason arising out of such failure. Such notice by Within twenty (20) days after delivery of such notification, the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate inmay, or by giving upon written notice thereof to the Indemnified Party, to assume control of the defense of any such Third-Party Claim at with counsel reasonably satisfactory to the Indemnified Party. During any period in which the Indemnifying Party’s expense and by the Indemnifying Party’s own counselParty has not so assumed control of such defense, and the Indemnified Party shall cooperate will control such defense.
(ii) The Party not controlling such defense (the “Non-controlling Party”) may participate therein at its own expense.
(iii) The Party controlling such defense (the “Controlling Party”) will keep the Non-controlling Party reasonably advised of the status of such Third-Party Claim and the defense thereof and will consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party will furnish the Controlling Party with such Information as it may have with respect to such Third-Party Claim (including copies of any summons, complaint or other pleading which may have been served on such Party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and will otherwise cooperate with and assist the Controlling Party in such defense. In the event that the Indemnifying Party assumes the defense of any such Third-Party Claim.
(iv) The Indemnifying Party will not agree to any settlement of, subject to Section 8.03(b)or the entry of any judgment arising from, it shall have the 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 without the name and on behalf prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnified Party will not be required if (A) the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment, and (B) such settlement or judgment includes a full, complete and unconditional release of the Indemnified Party from further Liability. The Indemnified Party shall have will not agree to any settlement of, or the right to participate in the defense entry of any judgment arising from, any such Third-Party Claim with counsel selected by it subject to without the prior written consent of the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall which consent will not be at the expense of the Indemnified Partyunreasonably withheld or delayed.
Appears in 3 contracts
Samples: Property Management Agreement (Lender Processing Services, Inc.), Property Management Agreement (Lender Processing Services, Inc.), Property Management Agreement (Lender Processing Services, Inc.)
Third Party Claims. (a) If any Indemnified Party receives notice of the assertion a third party commences or commencement of any Action made or brought by any Person who is not threatens a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing Proceeding (a “Third-Party Claim”) against any Person (the “Indemnified Party”) with respect to any matter that the Indemnified Party might make a claim for indemnification against any Party (the “Indemnifying Party”) under this Article VIII, then the Indemnified Party must notify the Indemnifying Party (or the Seller, in the case of the Seller) thereof in writing of the existence of such Third-Party Claim and must deliver copies of any documents served on the Indemnified Party with respect to which the Third-Party Claim; provided, however, that any failure to notify the Indemnifying Party or deliver copies will not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is obligated materially prejudiced by such failure.
(b) Upon receipt of the notice described in Section 8.6(a), the Indemnifying Party will have the right to provide indemnification under this Agreement, defend the Indemnified Party shall give against the Indemnifying Third-Party Claim with counsel reasonably prompt written notice thereof, but in any event not later than thirty satisfactory to the Indemnified Party so long as (30i) calendar within ten days after receipt of such notice notice, the Indemnifying Party notifies the Indemnified Party in writing that the Indemnifying Party will, subject to the limitations of such Section 8.4, indemnify the Indemnified Party from and against any Losses the Indemnified Party may incur relating to or arising out of the Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve (ii) the Indemnifying Party of its indemnification obligations, except and only provides the Indemnified Party with evidence reasonably acceptable to the extent Indemnified Party that the Indemnifying Party forfeits rights will have the financial resources to defend against the Third-Party Claim and fulfill its indemnification obligations hereunder, (iii) the Indemnifying Party is not a party to the Proceeding or defenses by reason of such failure. Such notice by the Indemnified Party shall describe has determined in good faith that there would be no conflict of interest or other inappropriate matter associated with joint representation, (iv) the Third-Party Claim does not involve, and is not likely to involve, any claim by any Governmental Body, (v) the Third-Party Claim involves only money damages and does not seek an injunction or other equitable relief, (vi) settlement of, or an adverse judgment with respect to, the Third-Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, (vii) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently and (viii) the Indemnifying Party keeps the Indemnified Party apprised of all developments, including settlement offers, with respect to the Third-Party Claim and permits the Indemnified Party to participate in the defense of the Third-Party Claim.
(c) So long as the Indemnifying Party is conducting the defense of the Third-Party Claim in reasonable detailaccordance with Section 8.6(b), shall include copies of all material written evidence thereof and shall indicate (i) the estimated amount, if reasonably practicable, of the Loss that has been or may Indemnifying Party will not be sustained responsible for any attorneys’ fees incurred by the Indemnified Party. The Indemnifying Party shall have regarding the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at (other than attorneys’ fees incurred prior to the Indemnifying Party’s expense assumption of the defense pursuant to Section 8.6(b)) and by the Indemnifying Party’s own counsel, and (ii) neither the Indemnified Party shall cooperate in good faith in such defense. In the event that nor the Indemnifying Party assumes will consent to the defense entry of any judgment or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the other party, which consent will not be withheld unreasonably. If the Indemnified Party desires to consent to the entry of judgment with respect to or settle a Third-Party Claim but the Indemnifying Party refuses, then the Indemnifying Party will be responsible for all Losses with respect to such Third-Party Claim, subject without giving effect to the Basket or the Cap.
(d) If any condition in Section 8.03(b)8.6(b) is or becomes unsatisfied, it shall have (i) the right Indemnified Party may defend against, and consent to take such action as it deems necessary to avoidthe entry of any judgment or enter into any settlement with respect to, dispute, defend, appeal or make counterclaims pertaining to any such the Third-Party Claim in any manner it may deem appropriate (and the name Indemnified Party need not consult with, or obtain any consent from, the Indemnifying Party in connection therewith), (ii) the Indemnifying Party will reimburse the Indemnified Party promptly and on behalf periodically (but no less often than monthly) for the costs of defending against the Third-Party Claim, including attorneys’ fees and expenses, and (iii) the Indemnifying Party will remain responsible for any Losses the Indemnified Party may incur relating to or arising out of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, fullest extent provided that the fees and disbursements of such counsel shall be at the expense of the Indemnified Partyin this Article VIII.
Appears in 3 contracts
Samples: Member Unit Purchase Agreement (Alpine 4 Technologies Ltd.), Membership Interest Purchase Agreement (Alpine 4 Automotive Technologies Ltd.), Stock Purchase Agreement (Livedeal Inc)
Third Party Claims. If any (i) In the event that the Indemnified Party receives written notice or otherwise learns of the assertion by a Person that is not a member of either Group of any claim or the commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (collectively, a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is may be obligated to provide indemnification under this AgreementArticle 6, the Indemnified Party shall will give written notice to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days of the Third-Party Claim. Such notification will be given within 10 Business Days after receipt by the Indemnified Party of such notice of such Third-Party Claim. The failure , will be accompanied by reasonable supporting documentation submitted by such third Person (to give the extent then in the possession of the Indemnified Party) and will describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such prompt written notice shall notThird-Party Claim and the amount of the claimed Damages; provided, however, that no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party will relieve the Indemnifying Party of its indemnification obligations, any Liability or obligation hereunder except and only to the extent that the Indemnifying Party forfeits rights of any Damages caused by or defenses by reason arising out of such failure. Such notice by Within 20 Business Days after delivery of such written notice, the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate inmay, or by giving upon written notice thereof to the Indemnified Party, to assume control of the defense of any such Third-Party Claim at with counsel reasonably satisfactory to the Indemnified Party. During any period in which the Indemnifying Party has not so assumed control of such defense, the Indemnified Party will control such defense.
(ii) The party not controlling such defense (the “Non-controlling Party’s expense and by ”) may participate therein at its own expense; provided, however, that if the Indemnifying Party’s own counsel, Party assumes control of such defense and the Indemnified Party shall cooperate in good faith in such defense. In concludes, upon the event written opinion of counsel, that the Indemnifying Party assumes and the defense of any Indemnified Party have conflicting interests with respect to such Third-Party Claim, subject the reasonable fees and expenses of counsel to Section 8.03(b), it shall have the right to take Indemnified Party will be considered “Damages” for purposes of this Agreement. The party controlling such action defense (the “Controlling Party”) will keep the Non-controlling Party reasonably advised of the status of such Third-Party Claim and the defense thereof and will consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party will furnish the Controlling Party with such Information as it deems necessary may have with respect to avoidsuch Third-Party Claim (including copies of any summons, disputecomplaint or other pleading which may have been served on such party and any written claim, defenddemand, appeal invoice, billing or make counterclaims pertaining other document evidencing or asserting the same) and will otherwise cooperate with and assist the Controlling Party in the defense of such Third-Party Claim.
(iii) The Indemnifying Party will not agree to any settlement of, or the entry of any judgment arising from, any such Third-Party Claim in without the name and on behalf prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnified Party will not be required if (A) the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment, and (B) such settlement or judgment includes a full, complete and unconditional release of the Indemnified Party from further Liability. The Indemnified Party shall have will not agree to any settlement of, or the right to participate in the defense entry of any judgment arising from, any such Third-Party Claim with counsel selected by it subject to without the prior written consent of the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall which consent will not be at the expense of the Indemnified Partyunreasonably withheld or delayed.
Appears in 3 contracts
Samples: Master Separation and Distribution Agreement (Manitowoc Foodservice, Inc.), Master Separation and Distribution Agreement (Manitowoc Co Inc), Master Separation and Distribution Agreement (Manitowoc Foodservice, Inc.)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b6.04(b), it shall have the 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. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall be at the expense of the Indemnified Party.
Appears in 3 contracts
Samples: Asset Purchase Agreement (McQueen Labs Series, LLC), Asset Purchase Agreement (McQueen Labs Series, LLC), Asset Purchase Agreement (McQueen Labs Series, LLC)
Third Party Claims. If any Indemnified Party receives notice (a) In the event of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”, the Indemnifying Party, at its option, may assume (with legal counsel reasonably acceptable to the Indemnified Party) against at its sole cost and expense the defense of such Third-Party Claim if it acknowledges to the Indemnified Party in writing its obligations to indemnify the Indemnified Party with respect to which all elements of such Third-Party Claim and may assert any defense of the Indemnified Party or the Indemnifying Party; provided that the Indemnified Party will have the right at its own expense to participate jointly with the Indemnifying Party is obligated to provide indemnification under this Agreement, in the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in defense of any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve Counsel representing both the Indemnifying Party of and the Indemnified Party must acknowledge in writing its indemnification obligations, except obligation to act as counsel for all parties being represented and only must acknowledge and respect separate attorney-client privileges with respect to the extent that each party represented. If the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right elects to participate in, or by giving written notice to the Indemnified Party, to assume undertake the defense of any Third-Party Claim under this Agreement, the Indemnified Party will cooperate with the Indemnifying Party in the defense or settlement of the Third-Party Claim, including providing access to information, making documents available for inspection and copying, and making employees available for interviews, depositions and trial, in each case, at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defenseexpense. In the event that the The Indemnifying Party assumes the defense of will not be entitled to settle any Third-Party Claim, subject to Section 8.03(b), it shall have Claim without the 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 prior written consent of the Indemnified Party. The Indemnified Party shall have , which consent will not be unreasonably withheld or delayed.
(b) If the right to participate in Indemnifying Party, by the defense 30th day after receipt of notice of any Third-Party Claim with counsel selected (or, if earlier, by it subject the 10th day preceding the day on which an answer or other pleading must be served in order to prevent Judgment by default in favor of the Person asserting such Third-Party Claim) does not assume actively and in good faith the defense of any such Third- Party Claim or action resulting therefrom, the Indemnified Party may, at the Indemnifying Party’s expense, defend against such Claim or litigation, after giving notice of the same to the Indemnifying Party’s right , on such terms as the Indemnified Party may deem appropriate, and the Indemnifying Party will be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. The Indemnified Party will not settle or compromise any Third-Party Claim for which it is entitled to indemnification under this Agreement, without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld or delayed.
(c) Notwithstanding anything in this Section 8.5 to the contrary, LMP will in all cases be entitled to control the defense thereofof a Third-Party Claim if LMP reasonably believes (i) such Third-Party Claim could result in Liabilities which, provided taken together with other then outstanding Claims by LMP under this Agreement, could exceed the remaining potential Damages payable by Xxxxxxxx under this Agreement or the amount that LMP believes it will be able to collect from Xxxxxxxx under this Agreement or (ii) such Third-Party Claim could adversely affect in any material respect LMP or its Affiliates (other than the fees and disbursements Company Group Entities) other than as a result of such counsel shall be at money damages or if injunctive or other non-monetary relief has been sought against LMP or its Affiliates (other than the expense of the Indemnified PartyCompany Group Entities).
Appears in 3 contracts
Samples: Membership Interest Purchase Agreement (LMP Automotive Holdings, Inc.), Membership Interest Purchase Agreement (LMP Automotive Holdings, Inc.), Membership Interest Purchase Agreement (LMP Automotive Holdings, Inc.)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence thereof 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense; provided, that, if the Indemnifying Party is the Seller, such Indemnifying Party shall not have the right to defend or direct the defense of any such Third-Party Claim that seeks an injunction or other equitable relief against the Indemnified Party. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal appeal, or make counterclaims pertaining to any such Third-Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third-Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the . The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that, if in the reasonable opinion of counsel to the Indemnified Party, (i) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party or (ii) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. 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, subject to Section 8.03(b), 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. The Seller and the Purchaser shall cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available (subject to the provisions of Section 5.06) records relating to such Third-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third-Party Claim.
Appears in 3 contracts
Samples: Share Purchase Agreement (Turnkey Solutions, Inc.), Share Purchase Agreement (Fast Lane Holdings, Inc.), Share Purchase Agreement (Quick Start Holdings, Inc.)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action claim is made or brought by any Person who is not against a party (an "Indemnified Party") that, if sustained, would give rise to a liability of another party (the "Indemnifying Party") under this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-"Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement"), the Indemnified Party shall give promptly, and in any case within ten (10) business days of its receipt of notice of such Third Party Claim, cause notice of the Third Party Claim to be delivered to the Indemnifying Party reasonably prompt written notice thereofalong with all of the facts, but in any event not later than thirty information or materials relating to such claim of which the Indemnified Party is aware (30) calendar days after receipt of such notice of such Third-Party Claim. The the "Claim Notice"), provided however, that failure to give such prompt written notice notification shall not, however, relieve not affect the indemnification provided hereunder except to the extent the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason shall have been actually prejudiced as a result of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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. .
(i) The Indemnifying Party shall have the right ten (10) calendar days after delivery thereof to participate inelect, or by giving written notice in writing to the Indemnified Party, to defend or settle the Third Party Claim, at its own expense. Until written notice electing to defend or settle any Third Party Claim, the Indemnified Party may take, at the expense of the Indemnifying Party, any action it reasonably believes necessary to preserve its rights with respect to such Third Party Claim. If the Indemnifying Party does not assume the defense of any Third-claim, then the Indemnified Party may defend against such Third Party Claim in such manner as it deems appropriate at the expense of the Indemnifying Party’s expense and .
(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 with counsel selected by the Indemnifying Party’s own counsel, and which counsel must be reasonably satisfactory to the Indemnified Party, provided that all Indemnifying Parties with respect to such Third Party Claim jointly acknowledge to the Indemnified Party its right to indemnity pursuant hereto in respect of the entirety of such claim and provide assurances reasonably satisfactory to the Indemnified Party that the Indemnifying Parties will be financially able to satisfy such claim in full if it is decided adversely. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall cooperate not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in good faith in such defenseconnection with the defense thereof (except as hereinafter provided), but shall continue to pay for any expenses of investigation or any Damage suffered. In the event that If the Indemnifying Party assumes such defense, the defense of any Third-Party Claim, subject to Section 8.03(b), it shall have the 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. The Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as hereinafter provided), separate from the counsel employed by the Indemnifying Party. Notwithstanding the foregoing, if (a) the Indemnifying Party shall not assume the defense of any Third-a Third Party Claim with counsel selected by it subject reasonably satisfactory to the Indemnified Party within ten (10) business days of any Claim Notice, or (b) legal counsel for the Indemnified Party notifies the Indemnifying Party that there are or may be legal defenses available to the Indemnified Party or to other Indemnified Parties which are different from or additional to those available to the Indemnifying Party’s right , which, if the Indemnified Party and the Indemnifying Party were to be represented by the same counsel, would constitute a conflict of interest for such counsel or prejudice prosecution of the defenses available to such Indemnified Party, or (c) if the Indemnifying Party shall assume the defense of a Third Party Claim and fails to diligently and vigorously prosecute such defense in a timely manner after due notice, then in each such case the Indemnified Party, by notice to the Indemnifying Party, may employ its own counsel and control the defense thereofof the Third Party Claim and the Indemnifying Party shall be liable for the reasonable fees, provided that the fees charges and disbursements of such counsel employed by the Indemnified Party and the Indemnified Party shall be at promptly reimbursed for any such fees, charges and disbursements, as and when incurred. Whether the expense Indemnifying Party or the Indemnified Party control the defense of any Third Party Claim, the parties hereto shall cooperate in the defense thereof. Such cooperation shall include the retention and provision to the counsel of the controlling 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. The Indemnifying Party shall have the right to settle, compromise or discharge a Third Party Claim (other than any such Third Party Claim in which criminal conduct is alleged) without the Indemnified Party's consent if such settlement, compromise or discharge (x) constitutes a complete and unconditional discharge and release of all Indemnified Parties, and (y) provides for no relief other than the payment of monetary damages and such monetary damages are paid in full by the Indemnifying Party, and in all other cases may not so settle without the prior written consent of the Indemnified Party.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Immediatek Inc), Asset Purchase Agreement (Quipp Inc), Asset Purchase Agreement (Immediatek Inc)
Third Party Claims. If any Indemnified Party receives notice In the event of the assertion or commencement of any Action made or brought by any Person who is not a third party to this Agreement or an Affiliate of a party claim against a Seller Indemnitee which gives rise to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide claim for indemnification under this AgreementAgreement (“Third Party Claims”), the Indemnified Party shall give Buyer will have the Indemnifying Party reasonably prompt written notice thereofright, but in at its cost and expense and subject to the terms of this clause 10.3(b), to assume the defence thereof including the appointment and selection of counsel. If the Buyer elects to assume the defence of any event not later than thirty (30) calendar days after receipt of such notice of such Third-Third Party Claim. The failure to give such prompt written notice , it shall not, however, relieve within 30 days notify the Indemnifying Party Seller Indemnitee in writing of its indemnification obligationsintent to do so. In the event the Buyer exercises its right to undertake the defence against any such Third Party Claim as provided above, except the Seller Indemnitee shall cooperate with the reasonable requirements of the Buyer in such defence and only make available to the Buyer all witnesses, pertinent records, materials and information in such party’s possession or under its control relating thereto as may be reasonably required by the Buyer (save to the extent that such information is bound by a duty of confidentiality based on the Indemnifying Party forfeits rights or defenses written opinion of counsel), and the relevant Seller Indemnitee may participate by reason its own counsel and at its own expense in defense of such failureThird Party Claim. Such notice Except for the settlement of a Third Party Claim which involves the payment of money only which is to be paid in full by the Indemnified Party shall describe the Third-Buyer, no Third Party Claim in reasonable detail, shall include copies of all material for which the Buyer has elected to defend may be settled by the Buyer without the prior written evidence thereof and shall indicate the estimated amount, if reasonably practicable, consent of the Loss relevant Seller Indemnitee, which consent shall not be unreasonably withheld or delayed (it being understood that has been or may be sustained by the Indemnified Party. The Indemnifying Party a Seller Indemnitee shall have sole discretion in relation to settlement of any claim involving criminal liability of such Seller Indemnitee). Notwithstanding the right to participate inforegoing, or by giving written notice to the Indemnified Party, in order to assume the defense defence of a Third Party Claim the Buyer shall have agreed to fully indemnify the relevant Seller Indemnitee on demand in respect of any Third-fees, costs or expenses suffered or incurred by such Seller Indemnitee as a result of the relevant Third Party Claim at the Indemnifying Party’s expense and or in connection with any action taken by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate Buyer in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b), it shall have the 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. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, connection therewith provided that the fees relevant Seller Indemnitee shall not be prohibited by the foregoing provisions from settling or paying any Third Party Claim immediately if it is under a legal obligation (based on the written opinion of counsel) to do so and disbursements of such counsel settlement or payment shall be at the expense of the Indemnified Partynot impair its rights to indemnity under this Agreement.
Appears in 3 contracts
Samples: Aircraft Sale Agreement (Atlas Air Worldwide Holdings Inc), Aircraft Sale Agreement (Atlas Air Worldwide Holdings Inc), Aircraft Sale Agreement (Atlas Air Worldwide Holdings Inc)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b7.03(b), it shall have the 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. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall be at the expense of the Indemnified Party.
Appears in 3 contracts
Samples: Project Management Services Agreement (Bitech Technologies Corp), Membership Interest Purchase Agreement (Bitech Technologies Corp), Share Exchange Agreement (Clubhouse Media Group, Inc.)
Third Party Claims. If any a Purchaser Indemnified Party or a Seller Indemnified Party (each, an “Indemnified Party”) receives notice of the assertion any Action, audit, demand or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing assessment (each, a “Third-Party Claim”) against such Indemnified Party with respect it or which may give rise to which the Indemnifying Party is obligated to provide indemnification a claim for Loss under this AgreementArticle VII, within thirty (30) calendar days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereofor Indemnifying Parties, but in any event not later than thirty (30) calendar days after receipt of such as the case may be, notice of such Third-Party Claim. The failure to give such prompt written notice shall not; provided, however, relieve that the failure to provide such notice shall not release any Indemnifying Party from any of its indemnification obligations, obligations under this Article VII except and only to the extent that such Indemnifying Party is materially prejudiced by such failure and shall not relieve such Indemnifying Party from any other obligation or liability that it may have to any Indemnified Party otherwise than under this Article VII. If the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by acknowledges in writing its obligation to indemnify the Indemnified Party shall describe the or Indemnified Parties hereunder against any Losses that may result from such Third-Party Claim in reasonable detailClaim, then such Indemnifying Party or Indemnifying Parties, as the case may be, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, entitled to assume and control the defense of any such Third-Party Claim at the Indemnifying Party’s its or their expense and by the Indemnifying Party’s own counsel, and through counsel of its or their choice if it or they give notice of such intention to do so to the Indemnified Party or Indemnified Parties, as the case may be, within fourteen (14) calendar days of the receipt of notice from any Indemnified Party of such Third-Party Claim; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the reasonable judgment of the Indemnified Party or Indemnified Parties in its or their sole and absolute discretion for the same counsel to represent both the Indemnified Party or Indemnified Parties and the Indemnifying Party or Indemnifying Parties, then the Indemnified Party or Indemnified Parties shall cooperate be entitled to retain its or their own counsel in good faith in such defenseeach jurisdiction for which the Indemnified Party determines counsel is required, at the expense of the Indemnifying Party or Indemnifying Parties. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b), it shall have or Indemnifying Parties exercise the right to take undertake any such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to defense against any such Third-Party Claim as provided above, the Indemnified Party or Indemnified Parties shall cooperate with the Indemnifying Party or Indemnifying Parties in the name such defense and on behalf of make available to any Indemnifying Party, at such Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by such Indemnifying Party. The Similarly, in the event any Indemnified Party shall have the right to participate in is, directly or indirectly, conducting the defense of against any such Third-Party Claim, such Indemnifying Party shall cooperate with the Indemnified Party or Indemnified Parties in such defense and make available to any Indemnified Party, at such Indemnifying Party’s or Indemnifying Parties’ expense, all such witnesses, records, materials and information in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as is reasonably required by any Indemnified Party. No Third-Party Claim with counsel selected may be settled (i) by it subject to any Indemnified Party without the prior written consent of the Indemnifying Party’s right Party or Indemnifying Parties (which shall not be unreasonably withheld or delayed) if the Indemnifying Party or Indemnifying Parties acknowledge in writing its or their obligation to control indemnify such Indemnified Party hereunder against any Losses that may result from such Third-Party Claim or (ii) by any Indemnifying Party without the defense thereof, provided that the fees and disbursements of such counsel shall be at the expense prior written consent of the Indemnified Party or Indemnified Parties, except, in the case of (ii) only, where settlement of such Third-Party Claim (A) includes an unconditional release of the Indemnified Party or Indemnified Parties from all liability arising out of such Action, audit, demand or assessment and (B) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party.
Appears in 3 contracts
Samples: Share Purchase Agreement (The9 LTD), Share Purchase Agreement (The9 LTD), Share Purchase Agreement (The9 LTD)
Third Party Claims. If any (i) In the event that the Indemnified Party receives written notice or otherwise learns of the assertion or commencement of any Action made or brought by any a Person who is not a party to this Agreement member of either Group of any claim or an Affiliate the commencement of a party to this Agreement or a Representative of the foregoing any Action (collectively, a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is may be obligated to provide indemnification under this AgreementArticle 5, the Indemnified Party shall will give written notice to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days of the Third-Party Claim. Such notification will be given as soon as practicable after receipt by the Indemnified Party of such notice of such Third-Party Claim. The failure , will be accompanied by reasonable supporting documentation submitted by such third Person (to give the extent then in the possession of the Indemnified Party) and will describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such prompt written notice shall notThird-Party Claim and the amount of the claimed Damages; provided, however, that no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party will relieve the Indemnifying Party of its indemnification obligations, any Liability or obligation hereunder except and only to the extent that the Indemnifying Party forfeits rights of any Damages caused by or defenses by reason arising out of such failure. Such notice by Within 30 calendar days after delivery of such written notice, the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate inmay, or by giving upon written notice thereof to the Indemnified Party, to assume control of the defense of any such Third-Party Claim at with counsel reasonably satisfactory to the Indemnified Party. During any period in which the Indemnifying Party has not so assumed control of such defense, the Indemnified Party will control such defense.
(ii) The party not controlling such defense (the “Non-controlling Party’s expense and by ”) may participate therein at its own expense; provided, however, that if the Indemnifying Party’s own counsel, Party assumes control of such defense and the Indemnified Party shall cooperate in good faith in such defense. In concludes, upon the event written opinion of counsel, that the Indemnifying Party assumes and the defense of any Indemnified Party have conflicting interests with respect to such Third-Party Claim, subject the reasonable fees and expenses of counsel to Section 8.03(b), it shall have the right to take Indemnified Party will be considered “Damages” for purposes of this Agreement. The party controlling such action defense (the “Controlling Party”) will keep the Non-controlling Party reasonably advised of the status of such Third-Party Claim and the defense thereof and will consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party will furnish the Controlling Party with such information as it deems necessary may have with respect to avoidsuch Third-Party Claim (including copies of any summons, disputecomplaint or other pleading which may have been served on such party and any written claim, defenddemand, appeal invoice, billing or make counterclaims pertaining other document evidencing or asserting the same) and will otherwise cooperate with and assist the Controlling Party in the defense of such Third-Party Claim.
(iii) The Indemnifying Party will not agree to any settlement of, or the entry of any judgment arising from, any such Third-Party Claim in without the name and on behalf prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnified Party will not be required if (A) the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment, and (B) such settlement or judgment includes a full, complete and unconditional release of the Indemnified Party from further Liability. The Indemnified Party shall have will not agree to any settlement of, or the right to participate in the defense entry of any judgment arising from, any such Third-Party Claim with counsel selected by it subject to without the prior written consent of the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall which consent will not be at the expense of the Indemnified Partyunreasonably withheld or delayed.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Atlas Energy, L.P.), Separation and Distribution Agreement (Atlas Resource Partners, L.P.), Separation and Distribution Agreement (Atlas Resource Partners, L.P.)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than Within thirty (30) calendar days after following the receipt of such notice of such Third-a Third Party Claim, and in any event within the period necessary to respond to such pleading, if applicable, the party receiving the notice of the Third Party Claim shall (i) notify Parent of the existence of such Third Party Claim setting forth with reasonable specificity the facts and circumstances of which such party has received notice, and (ii) specifying the basis hereunder upon which the Indemnitee's claim for indemnification is asserted. As used herein, "Third Party Claim" shall mean any claim, action, suit, proceeding, investigation, or like matter which is asserted or threatened by any party other than the parties hereto, their successors and permitted assigns, against an Indemnitee. The failure to give deliver the notice described in the first sentence of this Section 9.10(b) within the time frame required shall relieve Parent of any liability with respect to such prompt written notice Third Party Claim. Each Indemnitee shall, upon reasonable notice, tender the defense of a Third Party Claim to Parent if so requested by Parent in writing. Then, except as hereinafter provided, such Indemnitee shall not, howeverand Parent shall, relieve have the Indemnifying right to contest, defend, litigate or settle such Third Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failureClaim. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 Each Indemnitee shall have the right to be represented by counsel and to participate inat its own expense in any such contest, defense, litigation or settlement conducted by Parent. Parent shall have the exclusive right to contest and defend the Third Party Claim and shall have the right, upon receiving the prior written approval of such Indemnitee (which shall not be unreasonably withheld) and which shall be deemed automatically given if a response has not been received within the ten (10) day period following a written request for such consent), to settle any such matter, either before or after the initiation of litigation, at such time and upon such terms as it deems fair and reasonable. If an Indemnitee is entitled to indemnification against a Third Party Claim, and Parent fails to accept a tender of, or by giving written notice to the Indemnified Partyassume, to assume the defense of any Third-a Third Party Claim at pursuant to this Section 9.10(b), such Indemnitee shall have the Indemnifying Party’s expense and by the Indemnifying Party’s own counselright, and the Indemnified Party shall cooperate without prejudice to its right of indemnification hereunder, in its discretion exercised in good faith in and upon the advice of counsel, to contest, defend, litigate and settle such defense. In the event that the Indemnifying Party assumes the defense of any Third-Third Party Claim, subject to Section 8.03(b)either before or after the initiation of litigation, it shall have the right to take at such action time and upon such terms as it such Indemnitee deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Party Claim in the name fair and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereofreasonable, provided that written notice of its intention to settle is given to Parent at least ten (10) days prior to settlement. If, pursuant to this Section 9.10(b), such Indemnitee so contests, defends, litigates or settles a Third Party Claim for which it is entitled to indemnification hereunder as hereinabove provided, such Indemnitee shall be reimbursed by Parent for the reasonable attorneys' fees and disbursements other expenses of such counsel shall be at defending, contesting, litigating and/or settling the expense Third Party Claim which are incurred from time to time, forthwith following the presentation to Parent of the Indemnified Partyitemized bills for said attorneys' fees and other expenses.
Appears in 2 contracts
Samples: Plan and Agreement of Merger and Amalgamation (Harrahs Entertainment Inc), Merger Agreement (Sky Games International LTD)
Third Party Claims. (a) If any Indemnified Party receives an Indemnitee shall receive notice or otherwise learn of the assertion by a Person (including any Governmental Authority) that is not a New NGC Entity or a HII Entity of any claim (including environmental claims and demands or requests for investigation or remediation of contamination) or of the commencement by any such Person of any Action made or brought by any Person who is not a party with respect to which an Indemnifying Party may be obligated to provide indemnification to such Indemnitee pursuant to this Agreement or an Affiliate of a party to this any Ancillary Agreement or a Representative of the foregoing (collectively, a “Third-Party Claim”) against ), such Indemnified Party with respect to which the Indemnitee shall give such Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereofthereof as soon as promptly practicable, but in any event not no later than thirty (30) calendar 20 days after receipt of such notice becoming aware of such Third-Party Claim. The failure to give Any such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detaildetail and contain written correspondence received from the third party that relates to the Third-Party Claim. Notwithstanding the foregoing, the failure of any Indemnitee to give notice as provided in this Section 5.5(a) shall include copies not relieve the related Indemnifying Party of all material written evidence thereof and shall indicate its obligations under this Article V, except to the estimated amount, if reasonably practicable, of the Loss extent that has been such Indemnifying Party is prejudiced by such failure to give notice.
(b) With respect to any Third-Party Claim that is or may be sustained a Shared Liability:
(i) If the Indemnifying Party receiving any notice pursuant to Section 5.5(a) or the Indemnitee believes that the Third-Party Claim is or may be a Shared Liability, such Indemnifying Party or Indemnitee may make a Determination Request within 30 days after the notice given by the Indemnified Indemnitee to the Indemnifying Party pursuant to Section 5.5(a). Upon the making of a Determination Request, the applicable Indemnitee shall assume the defense of such Third-Party Claim until a determination as to whether such Third-Party Claim is a Shared Liability. In the event of such assumption of defense, such Indemnitee shall be entitled to reimbursement of all the costs and expenses of such defense once a final determination or acknowledgement is made that such Indemnitee is entitled to indemnification with respect to such Third-Party Claim; provided, that if such Third-Party Claim is determined to be a Shared Liability, such costs and expenses shall be shared as provided in Section 5.5(b)(ii). If it is determined by New NGC and HII or by the Allocation Committee that the Third-Party Claim is a Shared Liability, the Managing Party (as determined in accordance with Section 6.1(a)) shall assume the defense of such Third-Party Claim as soon as reasonably practicable following such determination.
(ii) A party’s costs and expenses of assuming the defense of (subject to Section 5.5(b)(i)), and/or seeking to settle or compromise (subject to Section 5.5(b)(iv)), any Third-Party Claim that is a Shared Liability shall be included in the calculation of the amount of the applicable Shared Liability in determining the obligations of the parties with respect thereto pursuant to Section 6.4.
(iii) The Managing Party shall consult with the Non-Managing Party prior to taking any action with respect to any Third-Party Claim that is a Shared Liability if the Managing Party’s action could reasonably be expected to have a significant adverse impact (financial or non-financial) on the Non-Managing Party, including a significant adverse impact on the rights, obligations, operations, standing or reputation of the Non-Managing Party (or its Subsidiaries or Affiliates), and the Managing Party shall not take such action without the prior written consent of the Non-Managing Party, which consent shall not be unreasonably withheld or delayed.
(iv) The Managing Party shall promptly give notice to the Non-Managing Party regarding the substance of any settlement related discussions with respect to any Third-Party Claim that is a Shared Liability if (A) the Non-Managing Party is required to share in any significant aspect of the costs and expenses, proceeds or obligations resulting from such settlement or (B) the settlement can reasonably be expected to have a significant impact (financial or nonfinancial) on the Non-Managing Party. The In such instances, the Managing Party shall not settle such Third-Party Claim without the prior written consent of the Non-Managing Party, which consent shall not be unreasonably withheld or delayed.
(c) With respect to any Third-Party Claim that is not a Shared Liability:
(i) Unless the parties otherwise agree, within 30 days after the receipt of notice from an Indemnitee in accordance with Section 5.5(a), an Indemnifying Party shall defend (and, unless the Indemnifying Party has specified any reservations or exceptions, may seek to settle or compromise), at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, any Third-Party Claim that is not a Shared Liability. The applicable Indemnitee shall have the right to employ separate counsel and to participate inin (but not control) the defense, compromise, or settlement thereof, but the fees and expenses of such counsel shall be the expense of such Indemnitee. Notwithstanding the foregoing, the Indemnifying Party shall be liable for the fees and expenses of counsel employed by giving written the Indemnitee (A) for any period during which the Indemnifying Party has not assumed the defense of such Third-Party Claim (other than during any period in which the Indemnitee shall have failed to give notice of the Third-Party Claim in accordance with Section 5.5(a)) or (B) to the Indemnified Partyextent that such engagement of counsel is as a result of a conflict of interest, as reasonably determined by the Indemnitee acting in good faith.
(ii) No Indemnifying Party shall consent to assume the defense entry of any judgment or enter into any settlement of any Third-Party Claim at that is not a Shared Liability without the consent of the applicable Indemnitee; provided, however, that such Indemnitee shall be required to consent to such entry of judgment or to such settlement that the Indemnifying Party’s expense and by Party may recommend if the judgment or settlement (A) contains no finding or admission of any violation of Law or any violation of the rights of any Person, (B) involves only monetary relief which the Indemnifying Party’s own counselParty has agreed to pay and could not reasonably be expected to have a significant adverse impact (financial or non-financial) on the Indemnitee, including a significant adverse impact on the rights, obligations, operations, standing or reputation of the Indemnitee (or any of its Subsidiaries or Affiliates), and (C) includes a full and unconditional release of the Indemnified Party Indemnitee. Notwithstanding the foregoing, in no event shall cooperate in good faith in such defense. In an Indemnitee be required to consent to any entry of judgment or settlement if the event that effect thereof is to permit any injunction, declaratory judgment, other order or other nonmonetary relief to be entered, directly or indirectly, against any Indemnitee.
(d) Whether or not the Indemnifying Party assumes the defense of any a Third-Party Claim, subject to Section 8.03(b)no Indemnitee shall admit any liability with respect to, it shall have the right to take such action as it deems necessary to avoidor settle, disputecompromise or discharge, defend, appeal or make counterclaims pertaining to any such Third-Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to without the Indemnifying Party’s right prior written consent, which consent shall not be unreasonably withheld or delayed.
(e) Notwithstanding anything to control the defense contrary in this Section 5.5 or in Article VI, the additional provisions of the Litigation Management Agreement shall govern with respect to all Third-Party Claims (including Shared Actions) specifically set forth therein or covered by the terms thereof, provided that and the fees Litigation Management Agreement shall control over any inconsistent provisions of this Section 5.5 and disbursements of Article VI as to such counsel shall be at the expense of the Indemnified PartyThird-Party Claims.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Huntington Ingalls Industries, Inc.), Separation and Distribution Agreement (Northrop Grumman Corp /De/)
Third Party Claims. If any The Indemnifying Party (through the Stockholder’s Representative in the event the Indemnified Party receives notice of is a Company Indemnified Party) shall be entitled, at its own expense, to assume and control the assertion or commencement defense of any Action made or brought Claims based on claims asserted by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing third parties (a “Third-Third Party ClaimClaims”) against such Indemnified Party with respect to which ), through counsel chosen by the Indemnifying Party is obligated (or in the case of the Company Indemnified Parties, by the Stockholder’s Representative), if it gives written notice of its intention to provide indemnification under this Agreement, do so to the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than Parties within thirty (30) calendar days after of the receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall notthe applicable Claim Notice; provided, however, relieve that the Indemnifying Indemnified Parties may at all times participate in such defense at their expense provided, further, that if any such Third Party Claim relates to Taxes of its indemnification obligationsCosmos, except and only any Cosmos Subsidiary or any JV Entity or seeks non-monetary damages or asserts damages in excess of the Indemnity Holdback Amount against a Company Indemnified Party, then, notwithstanding anything in this Agreement to the extent that contrary, the Indemnifying Party forfeits rights Company (or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, a Subsidiary of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party Company) shall have the right to participate incontrol any such Third Party Claim. Without limiting the foregoing, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes exercises the right to undertake any such defense of any Third-against a Third Party Claim, subject to Section 8.03(b), it shall have the 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. The Indemnified Party shall have cooperate with the right Indemnifying Party in such defense and make available to participate in the defense of any Third-Indemnifying Party Claim with counsel selected (unless prohibited by it subject to Law), at the Indemnifying Party’s right expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. No compromise or settlement of such Third Party Claim may be effected by either the Indemnified Party, on the one hand, or the Indemnifying Party (or in the case of the Company Indemnified Parties, the Stockholder’s Representative), on the other hand, without the other’s consent (which shall not be unreasonably withheld or delayed) unless (a) there is no finding or admission of any violation of Law and no effect on any other claims that may be made against such other party and (b) each Indemnified Party that is party to control the defense thereof, such claim is released from all liability with respect to such claim provided that the fees and disbursements Stockholder’s Representative shall be deemed to have consented to any proposed compromise or settlement to which he has not objected to by written notice within 30 days after notice of such counsel shall be at the expense of the proposed compromise or settlement was provided by a Company Indemnified Party.
Appears in 2 contracts
Samples: Merger Agreement (Otto Alexander), Merger Agreement (Paramount Group, Inc.)
Third Party Claims. If any Indemnified Party Indemnitee receives notice of the assertion or commencement of any Action action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative representative of the foregoing (a “Third-Third Party Claim”) against such Indemnified Party Indemnitee with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party Indemnitee shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty ten (3010) calendar days after receipt of such notice of such Third-Third Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party Indemnitee shall describe the Third-Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof to the extent reasonably available and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified PartyIndemnitee. The Indemnifying Party shall have the right to participate in, or by giving written notice if it shall have acknowledged in writing its obligation to provide indemnification to the Indemnified PartyIndemnitee in respect thereof, to assume the defense of any Third-Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party Indemnitee shall cooperate in good faith in such defense; provided that if the Indemnifying Party is a Seller, such Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim that seeks an injunction or other equitable relief against the Indemnitee. In the event that the Indemnifying Party assumes the defense of any Third-Third Party Claim, subject to Section 8.03(b10.4(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third Party Claim in the name and on behalf of the Indemnified PartyIndemnitee. The Indemnified Party Indemnitee shall have the right to participate in the defense of any Third-Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the . The fees and disbursements of such counsel shall be at the expense of the Indemnified Indemnitee; provided that if in the reasonable opinion of counsel to the Indemnitee, (A) there are legal defenses available to an Indemnitee that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnitee that is not waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnitee in each jurisdiction for which the Indemnitee determines counsel is required. If the Indemnifying Party elects not to compromise or defend such Third Party Claim, fails to promptly notify the Indemnitee in writing of its election to defend, or fails to diligently prosecute the defense of such Third Party Claim, the Indemnitee may pay, compromise and defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available, subject to the provisions of Section 11.4, records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.
Appears in 2 contracts
Samples: Share Purchase Agreement (Par Pharmaceutical Companies, Inc.), Share Purchase Agreement (Par Pharmaceutical Companies, Inc.)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Third Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b9.04(b), it shall have the 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. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the . The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. 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, subject to Section 9.04(b), 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. Shareholder and Parent shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending Party, management employees of the non-defending Party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.
Appears in 2 contracts
Samples: Merger Agreement (Helix TCS, Inc.), Merger Agreement (Helix TCS, Inc.)
Third Party Claims. If any (i) In the event that the Indemnified Party receives notice or otherwise learns of the assertion by a person or commencement of any Action made or brought by any Person entity who is not a party to this Agreement Party hereto or an Affiliate a Subsidiary of a party to this Agreement Party hereto (or, in the case of RECEIVING PARTY, FNF or a Representative one of its Subsidiaries) of any claim or the foregoing commencement of any action (a “"Third-Party Claim”") against such Indemnified Party with respect to which the Indemnifying Party is may be obligated to provide indemnification under this AgreementArticle X, the Indemnified Party shall will give written notification to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty of the Third-Party Claim. Such notification will be given within fifteen (3015) calendar days after receipt by the Indemnified Party of such notice of such Third-Party Claim. The failure , will be accompanied by reasonable supporting documentation submitted by such third party (to give the extent then in the possession of the Indemnified Party) and will describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such prompt written notice shall notThird-Party Claim and the amount of the claimed Damages; provided, however, that no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party will relieve the Indemnifying Party of its indemnification obligations, any liability for Damages or obligation hereunder except and only to the extent that the Indemnifying Party forfeits rights of any Damages caused by or defenses by reason arising out of such failure. Such notice by Within twenty (20) days after delivery of such notification, the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate inmay, or by giving upon written notice thereof to the Indemnified Party, to assume control of the defense of any such Third-Party Claim at with counsel reasonably satisfactory to the Indemnified Party. During any period in which the Indemnifying Party’s expense and by the Indemnifying Party’s own counselParty has not so assumed control of such defense, and the Indemnified Party shall cooperate will control such defense.
(ii) The Party not controlling such defense (the "Non-controlling Party") may participate therein at its own expense.
(iii) The Party controlling such defense (the "Controlling Party") will keep the Non-controlling Party reasonably advised of the status of such Third-Party Claim and the defense thereof and will consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party will furnish the Controlling Party with such Information as it may have with respect to such Third-Party Claim (including copies of any summons, complaint or other pleading which may have been served on such Party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and will otherwise cooperate with and assist the Controlling Party in such defense. In the event that the Indemnifying Party assumes the defense of any such Third-Party Claim.
(iv) The Indemnifying Party will not agree to any settlement of, subject to Section 8.03(b)or the entry of any judgment arising from, it shall have the 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 without the name and on behalf prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnified Party will not be required if (A) the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment, and (B) such settlement or judgment includes a full, complete and unconditional release of the Indemnified Party from further Liability. The Indemnified Party shall have will not agree to any settlement of, or the right to participate in the defense entry of any judgment arising from, any such Third-Party Claim with counsel selected by it subject to without the prior written consent of the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall which consent will not be at the expense of the Indemnified Partyunreasonably withheld or delayed.
Appears in 2 contracts
Samples: Corporate Services Agreement (Fidelity National Title Group, Inc.), Corporate Services Agreement (Fidelity National Title Group, Inc.)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b10.04(b), it shall have the 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. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall be at the expense of the Indemnified Party.
Appears in 2 contracts
Samples: Stock Purchase Agreement (MDwerks, Inc.), Stock Purchase Agreement (Waterside Capital Corp)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action action, suit, claim or other legal proceeding made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Third Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Third Party Claim, subject to Section 8.03(b10.5(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right right, at its own cost and expense, to participate in the defense of any Third-Third Party Claim with counsel selected by it it, subject to the Indemnifying Party’s right to control the defense thereof. If 45 the Indemnifying Party elects not to compromise or defend such Third Party Claim or fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, provided that the fees Indemnified Party may, subject to Section 10.5(b), pay, compromise, defend such Third Party Claim and disbursements seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available (subject to the provisions of Section 6.10) records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such counsel shall be at the expense of the Indemnified PartyThird Party Claim.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Green Plains Inc.), Asset Purchase Agreement (Green Plains Inc.)
Third Party Claims. If any In the event an Indemnified Party receives notice becomes aware of a third-party claim which the assertion or commencement of any Action made or brought by any Person who is not Indemnified Party believes may result in a party right to indemnification pursuant to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this AgreementSection 7, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereofpromptly, but and in any event not later than thirty within ten (3010) calendar days after receipt thereof, notify the Purchaser or Stockholders’ Representative, as applicable, of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except claim and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all known 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b), it shall have the 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 Partyfacts related thereto. The Indemnified Party shall have the right in its sole discretion to defend or settle any such claim, provided that the Indemnified Party shall keep the Purchaser or Stockholders’ Representative, as applicable, advised of the status of such third-party claim and the defense thereof and allow the Purchaser or the Stockholders’ Representative to participate in such defense with counsel of its choice (and at such party’s expense). The Indemnified Party shall not consent to the entry of any judgment or enter into any settlement without the consent of the Indemnifying Party (or Stockholders’ Representative, as applicable), which consent shall not be unreasonably withheld, delayed or conditioned. In the event that the Purchaser or Stockholders’ Representative, as applicable, has consented to any such settlement, the Indemnifying Party shall have no power or authority to object under Section 7(d) or any other provision of this Section 7 to the amount of any claim by the Indemnified Party for indemnity with respect to such settlement. Notwithstanding the foregoing, in the event an Indemnified Party becomes aware of a third party claim which, in the reasonable judgment of the Indemnified Party, (i) does not involve Intellectual Property of the Purchaser, and (ii) does not involve any type of injunctive relief, the Indemnified Party shall promptly notify the Indemnifying Party (or Stockholders’ Representative, as applicable), in writing, and the Indemnifying Party (or Stockholders’ Representative, as applicable), shall have the right, in its sole discretion, to assume and thereafter conduct the defense of any Third-Party Claim such claim with counsel selected by it subject of its choice reasonably satisfactory to the Indemnified Party (at the Indemnifying Party’s right expense). Neither the Indemnifying Party nor the Stockholders’ Representative will consent to control the defense thereof, provided that entry of any judgment or enter into any settlement without the fees and disbursements of such counsel shall be at the expense consent of the Indemnified PartyPurchaser or Stockholders’ Representative, as applicable, which consent shall not be unreasonably withheld, delayed or conditioned.
Appears in 2 contracts
Samples: Merger Agreement (Agrify Corp), Merger Agreement (Agrify Corp)
Third Party Claims. (A) If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement Party or a Party’s Affiliate or Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated liable to provide indemnification indemnify under this Agreement, the such Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty thereof (30) calendar days after receipt of such notice of such the “Third-Party ClaimClaim Notice”). The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of from its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses it is materially prejudiced by reason of such failure. Such notice by the Indemnified The Third-Party Claim Notice shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence notices received in respect thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. .
(B) The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s its own expense and by the Indemnifying Party’s its own counsel, and the Indemnified Party shall cooperate in good faith in such defense. , so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within twenty (20) days after receipt of the Third-Party Claim Notice that it will assume the defense of such Third-Party Claim, (ii) the Third-Party Claim only involves monetary damages and does not seek an injunction or other equitable relief, (iii) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently, and (iv) the amount sought under such Third- Party Claim does not exceed the then-remaining Indemnification Cap of the relevant Indemnifying Party, taking into account all other then-pending indemnification claims.
(C) In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, (x) subject to Section 8.03(b6.2(e)(ii), it shall have the 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. The , and (y) the Indemnified Party shall have the right 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 control the defense thereof. Notwithstanding the foregoing, provided that such Indemnifying Party shall not be entitled to assume control of the fees and disbursements defense of such counsel shall be at the expense of any Third-Party Claim (unless otherwise agreed to in writing by the Indemnified Party) if the Indemnified Party reasonably determines that a conflict of interest is likely to exist if such Indemnifying Party was defending such claim or if the claim is brought by a Government Authority directly against the Indemnified Party, and such Indemnifying Party shall indemnify the Indemnified Party for Losses the Indemnified Party reasonably incurs by reason of any such action.
(D) If the Indemnifying Party elects not to control or conduct the defense of such Third-Party Claim or fails to promptly notify the Indemnified Party in writing of its election to defend within such 20-day period, or any of the conditions of its right to control or conduct the defense of such Third-Party Claim set forth in this Section 6.2(e) are not or cease to be satisfied, then the Indemnified Party may pay, compromise, consent to the entry of any judgment or defend against such Third-Party Claim in any manner it reasonably may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and seek indemnification for any and all Losses based upon, arising from or relating to such Third-Party Claim.
(E) The Parties shall cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available (subject to the provisions of Section 6.3 and any requirements to preserve applicable privilege) records relating to such Third- Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending Party, management employees of the non-defending Party as may be reasonably necessary for the preparation of the defense of such Third-Party Claim.
Appears in 2 contracts
Samples: Sale and Purchase Agreement, Sale and Purchase Agreement
Third Party Claims. If any Indemnified In the event a third party asserts a claim or files a law suit against the Purchaser and/or Company (“Defendant”) in connection with a situation, for which the Seller could be liable under this Agreement (“Third Party receives notice of Claim”), the Purchaser shall make available to the Seller without undue delay and in no event later than ten Business Days after the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative filing of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Third Party Claim in reasonable detail, shall include copies a copy of the Third Party Claim and of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Thirdtime-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counselsensitive documents, and the Indemnified Party following shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b), it shall have the 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. The Indemnified Party apply:
9.7.1 Seller shall have the right to participate in the defense of any Third-defence against the Third Party Claim with counsel selected by it subject at its own costs if and to the Indemnifying Party’s extent the Seller notifies the Purchaser that the Seller wishes to participate in the defence of the claim. In such event, Purchaser shall procure that the Seller gets the opportunity to participate in such defence and defend the Defendant against the Third Party Claim. Save for Third Party Claims relating to IP Rights, as an alternative to a mere participation, the Seller shall have the right to control the defense thereofdefence of any Third Party Claim at its own costs so long as Purchaser shall have the right to participate at Purchaser’s own cost. In the event that Seller assumes control over the defence of a Third Party Claim, provided the Purchaser shall procure that the fees Defendant gives to the Seller all such assistance as the Seller may reasonably require and disbursements of shall appoint such counsel shall be at legal and other professional advisors as the expense Seller may nominate to act on behalf of the Indemnified PartyDefendant in accordance with Seller’s instructions.
9.7.2 Purchaser shall procure that the Defendant will fully co-operate with the Seller in view of the defence of the Third Party Claim, provide the Seller and its representatives (including, for the avoidance of doubt, its advisors) access to all relevant business records and documents upon reasonable advance notice and permit the Seller and its representatives to consult and meet with the employees and advisors of the Purchaser and the directors, employees and advisors of the Company as may be reasonably requested with advance notice. On the written request of the Seller, the Purchaser shall procure that the employees of the Purchaser and/or the directors and employees of the Company are made available to the Seller and its advisors as may be reasonably requested with advance notice and will cooperate with the Seller in order to participate in any actions or proceedings relating to the Third Party Claim including, without limitation, attending in person any court hearing as a witness in such proceedings. Seller shall not settle or otherwise compromise a Third Party Claim without Purchaser’s prior written consent if such settlement or compromise would reasonably be expected to adversely affect the Purchaser, the Company or the Business, such consent not to be unreasonably withheld or delayed.
9.7.3 If and for as long as the Seller fails to notify the Purchaser after receipt of the Claim Notice in relation to the Third Party Claim that the Seller wishes to participate in or control the defence of the claim, the Purchaser shall duly defend the Third Party Claim to the best of its ability, shall keep the Seller regularly informed about the status of the claim and duly take into account any requests of the Seller regarding the defence of the Third Party Claim. Any acknowledgement or settlement of any Third Party Claim shall require the Seller’s prior written consent, which shall not be unreasonably withheld or delayed. The Seller shall only be liable to reimburse the Purchaser to the extent that costs are reasonably and properly incurred by the Purchaser in relation to the defence of a Third Party Claim.
9.7.4 To the extent the Purchaser does not comply in all material respects with its co-operation obligations pursuant to this Clause 9.7, the Seller shall not be liable in relation to the Third Party Claim, unless such failure by the Purchaser did not have any impact on the amount claimed by the Purchaser under this Agreement.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Westinghouse Air Brake Technologies Corp)
Third Party Claims. If (a) Within ten (10) days (or sooner if the nature of the Third-Party Claim so requires) after the earlier of receipt of (i) notice that any Person (other than a Taxing Authority (as defined in the Tax Matters Agreement)) that is not a Hertz Entity or a HERC Holdings Entity (a “Third Party”) has commenced an Action against or otherwise involving any Indemnified Party receives notice or (ii) information from a Third Party alleging the existence of the assertion a claim against an Indemnified Party, in either case, with respect to which indemnification may be sought (in whole or commencement of any Action made or brought by any Person who is not a party to in part) under this Agreement or an Affiliate of a party to this any Ancillary Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement), the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such the Third-Party Claim. The failure to give such prompt written , which notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall detail and include copies of all material written evidence thereof relevant notices and documents (including court papers) received by the Indemnified Party related to such Third-Party Claim. The failure of the Indemnified Party to give timely notice as provided in this Section 5.5 shall indicate not relieve the estimated amountIndemnifying Party of its obligations under this Agreement, if except to the extent that the Indemnifying Party is actually prejudiced by the failure to give such notice.
(b) With respect to any Third-Party Claim that is a Shared Liability:
(i) If the Managing Party determines in its reasonable discretion that a Third-Party Claim constitutes a Shared Liability, the Managing Party shall assume the defense of such Third-Party Claim as soon as reasonably practicablepracticable following delivery or receipt, as applicable, of the Loss notice of such Third-Party Claim in accordance with Section 5.5(a); provided, however, that in the event the Managing Party has been or so determined that a Third-Party Claim constitutes a Shared Liability and a Dispute arises as to whether such Third-Party Claim constitutes a Shared Liability that may be sustained assumed by the Indemnified Managing Party, the Managing Party may not agree to any settlement or compromise of such Third-Party Claim without the prior written consent of the Non-Managing Party, such consent not to be unreasonably withheld, conditioned or delayed, until such time as such Dispute is resolved in accordance with the procedures set forth in Article VII; provided, that the Managing Party may agree to any settlement or compromise without the prior written consent of the Non-Managing Party during such period if such settlement or compromise (A) contains an unconditional release of the Non-Managing Party from all claims that are the subject of such Third-Party Claim, (B) does not subject the Non-Managing Party to non-monetary relief to which the Managing Party is not also subject, and (C) does not include an admission of liability by the Non-Managing Party. The Indemnifying Non-Managing Party shall have cooperate, at the right to participate in, or by giving written notice to reasonable request of the Indemnified Managing Party, to assume in the defense of any Third-Party Claim that is a Shared Liability. The Non-Managing Party shall have no authority to settle or compromise any Third-Party Claim that is a Shared Liability.
(ii) (A) A party’s costs and expenses of assuming the defense of, and/or seeking to settle or compromise, any Third-Party Claim that is a Shared Liability, (B) the Non-Managing Party’s costs and expenses incurred in connection with its cooperation in the defense of any such Third-Party Claim, and (C) the Managing Party’s and Non-Managing Party’s out-of-pocket costs and expenses incurred in connection with the compliance with any non-monetary relief imposed on the parties pursuant to any settlement or other disposition of a Shared Liability in accordance with the terms hereof, in each case shall be included in the calculation of the amount of the applicable Shared Liability in determining the obligations of the parties with respect thereto.
(iii) The Managing Party shall consult with the Non-Managing Party prior to taking any action (other than a settlement or compromise, which shall be governed by clause (iv) below) with respect to any Third-Party Claim that is a Shared Liability if the Managing Party’s action could reasonably be expected to have a significant adverse impact (financial or non-financial) on the Non-Managing Party, including a significant adverse impact on the rights, obligations, operations, standing or reputation of the Non-Managing Party (or its Subsidiaries or Affiliates), and the Managing Party shall not take such action without the prior written consent of the Non-Managing Party, which consent shall not be unreasonably withheld, delayed or conditioned.
(iv) The Managing Party shall promptly give notice to the Non-Managing Party regarding the substance of any settlement related discussions or proposals with respect to any Third-Party Claim that is a Shared Liability if the resulting settlement could reasonably be expected (A) not to contain an unconditional release of the Non-Managing Party from all claims that are the subject of such Third-Party Claim, (B) to subject the Non-Managing Party to non-monetary relief to which the Managing Party is not also subject, or (C) to include an admission of liability by the Non-Managing Party (any such consent in (A), (B) or (C), a “Consent Settlement”). The Managing Party shall not make any Consent Settlement without the prior written consent of the Non-Managing Party, which consent shall not be unreasonably withheld, delayed or conditioned. In all other instances, the Non-Managing Party shall agree to any such settlement proposal.
(v) The parties hereby agree that if the Managing Party presents the Non-Managing Party with a proposal pursuant to clause (iii) or (iv) above and the Non-Managing Party does not respond in any manner to the Managing Party within thirty (30) days (or within any such shorter time period that may be required by applicable Law or court order) of receipt of such proposal, then the Non-Managing Party shall be deemed to have consented to the terms of such proposal.
(c) With respect to any Third-Party Claim that is or may be a Shared Insurance Liability, New Hertz Holdings and HERC Holdings: (i) shall maintain open communications on the status of such claim; (ii) shall permit one another reasonable access to nonprivileged information on such claim; and (iii) agree, upon exhaustion of the shared pool of insurance funds, to re-balance, at least annually, the insurance recovery for such Shared Insurance Liabilities to make each Group’s share of the Insurance Proceeds proportional to such Group’s share of the total amount paid in settlements and/or judgments by insurance and the parties with respect to such Shared Insurance Liabilities.
(d) With respect to any Third-Party Claim that is not a Shared Liability governed by Section 5.5(b):
(i) Within thirty (30) days after receipt of the notice given by the Indemnified Party pursuant to Section 5.5(a), the Indemnifying Party may either (A) assume and control the defense (including claims administration) of such Third-Party Claim at its sole cost and expense by giving written notice to that effect to the Indemnified Party or (B) object to the claim for indemnification set forth in such notice. If the Indemnifying Party does not within the thirty (30)-day period give the Indemnified Party written notice electing to assume and control the defense of such Third-Party Claim, the Indemnified Party shall have the right to continue to control the defense of such Third-Party Claim. If the Indemnifying Party has assumed the defense of a Third-Party Claim in accordance with this Section 5.5(d)(i), the defense of the Third-Party Claim shall be controlled by the Indemnifying Party and counsel retained by the Indemnifying Party, and the Indemnifying Party shall promptly pay or reimburse the Indemnified Party’s reasonable attorneys’ fees and other costs and expenses incurred in investigating, preparing or defending such Third Party Claim prior to the Indemnifying Party’s expense assumption of the defense of such Third Party Claim.
(ii) A party may settle or compromise a Third-Party Claim of which it controls the defense with the prior consent of the other party, such consent not to be unreasonably withheld, conditioned or delayed; provided, that no such consent shall be required if the applicable settlement or compromise (A) contains an unconditional release of the other party from all claims that are the subject of such Third-Party Claim, (B) does not subject the other party to non-monetary relief to which the settling or compromising party is not also subject, and (C) does not include an admission of liability by the Indemnifying Party’s own counsel, other party. The parties hereby agree that if a party presents the other party with a proposal to settle or compromise a Third-Party Claim for which either party is seeking to be indemnified hereunder and the party receiving such proposal does not respond in any manner to the party presenting such proposal within thirty (30) days (or within any such shorter time period that may be required by applicable Law or court order) of receipt of such proposal, then the party receiving such proposal shall be deemed to have consented to the terms of such proposal.
(iii) An Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes does not conduct and control the defense of any Third-Party Claim, subject or an Indemnifying Party that has failed to Section 8.03(b)elect to defend any Third-Party Claim as contemplated hereby, it nevertheless shall have the right to take such action employ separate counsel (including local counsel as it deems necessary necessary) of its own choosing to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Party Claim in the name monitor and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in (but not control) the defense of any Third-Party Claim with counsel selected by for which it subject to the is a potential Indemnified Party or Indemnifying Party’s right to control the defense thereof, provided that but the fees and disbursements expenses of such counsel shall be at the expense of such Indemnified Party or Indemnifying Party, as the case may be. Notwithstanding the foregoing, such party shall cooperate with the party entitled to conduct and control the defense of such Third-Party Claim in such defense in accordance with Section 6.3(b). In addition to the foregoing, if any Indemnified Party shall in good faith determine, upon the advice of counsel, that such Indemnified Party and the Indemnifying Party have actual or potential differing defenses or conflicts of interest between them that make joint representation inappropriate, then the Indemnified Party shall have the right to employ separate counsel (including local counsel as necessary) and to participate in (but not control) the defense, compromise, or settlement thereof, and the Indemnifying Party shall bear the reasonable fees and expenses of such counsel for all Indemnified Parties.
(iv) If there is a timely objection by the Indemnifying Party pursuant to Section 5.5(d)(i), the Indemnified Party shall be entitled to exercise any remedies available under Article VII for a determination as to whether the Indemnified Party may be entitled to indemnification. If it has been Finally Determined that the Indemnified Party is entitled to indemnification, the Indemnifying Party shall, upon request from the Indemnified Party, promptly pay to the Indemnified Party the amount of any expense, loss or other amount subject to indemnification resulting from the Third-Party Claim for which the Indemnifying Party’s responsibility has been so Finally Determined.
(v) The Indemnified Party shall take all necessary action to keep and maintain in force all insurance that applies to any claim for which indemnification is sought. The Indemnified Party shall also use reasonable efforts to ensure that Insurance Proceeds received with respect to claims, costs and expenses under insurance policies in force shall be paid to reduce the net exposure of the Indemnified Party.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Herc Holdings Inc), Separation and Distribution Agreement (Hertz Rental Car Holding Company, Inc.)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action Proceeding made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative representative of the foregoing (a “Third-Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereofthereof (the “Claim Notice”), but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Third Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failureis prejudiced thereby. Such notice by the Indemnified Party shall describe the Third-Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may reasonably be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, to assume the conduct and control of the settlement or defense of any Third-Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense; provided, that if the Indemnifying Party is Seller, such Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim that (x) is asserted directly by or on behalf of a Person that is a material supplier, Dealer or customer of any Group Company, or (y) seeks an injunction or other equitable relief against the Indemnified Party. In the event that the Indemnifying Party assumes the defense of any Third-Third Party Claim, subject to Section 8.03(b9.5(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third-Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the settlement and defense thereof, provided that the . The fees and disbursements of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party elects not to compromise or defend such Third Party Claim, the Indemnified Party may, subject to Section 9.5(b), 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. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, such management employees of the non-defending party, information and testimony, and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably necessary for the preparation of the defense of such Third Party Claim.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Global Partners Lp)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Third Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Third Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party within five (5) days of the Indemnified Party’s written notice of the assertion of such Third Party Claim (or sooner, if the nature of the Third Party Claim so requires), notify the Indemnified Party of its intent to assume the defense of any Third-Third Party Claim at the Indemnifying Party’s sole expense and by the Indemnifying Party’s own counsel, which must be reasonably satisfactory to the Indemnified Party, and the Indemnified Party shall cooperate in good faith in such defense; provided, that the Indemnifying Party must conduct its defense of the Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard and, provided further, if the Indemnifying Party is any Seller, such Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim that (x) is asserted directly by or on behalf of a Person that is a supplier or customer of the Business, or (y) seeks an injunction or other equitable relief against the Indemnified Party. In the event that the Indemnifying Party assumes the defense of any Third-Third Party Claim, subject to Section 8.03(b8.05(b), it shall have the right to take such action as it deems reasonably necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third Party Claim in the name and on behalf of the Indemnified Party; provided, that if the Indemnifying Party is any Seller, any of the Sellers may assume the defense and become the Indemnifying Party. The Notwithstanding anything to the contrary in this Agreement, the Indemnified Party shall have the right to participate in the defense of any Third-Third Party Claim with counsel selected by it subject (which counsel shall be reasonably acceptable to the Indemnifying Party’s right to ) and assume the defense of or otherwise control the defense thereofhandling of a Third Party Claim, provided that the fees and disbursements of such counsel shall be in each case, at the expense of the Indemnified Party, by notifying the Indemnifying Party if (A) in the good faith reasonable opinion of counsel to the Indemnified Party, (i) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party or (ii) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, (B) such Third Party Claim seeks relief other than for monetary damages or would reasonably be expected to result in an injunction, writ or decree, (C) such Third Party Claim would result in monetary liability for which the Indemnified Party would not be fully reimbursed or (D) such Third Party Claim would reasonably be expected to materially and adversely affect a business relationship of the Indemnified Party. 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, subject to Section 8.05(b), pay, compromise or defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. UGC and Buyer shall cooperate with each other in good faith and in all reasonable respects in connection with the defense of any Third Party Claim, including making reasonably available (subject to the provisions of Section 6.06) records relating to such Third Party Claim upon reasonable request in writing and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Uncommon Giving Corp), Asset Purchase Agreement (Uncommon Giving Corp)
Third Party Claims. (a) If any the Indemnified Party receives notice seeks indemnity under this ARTICLE 8 in respect of, arising out of the assertion or commencement of any Action made involving a claim or brought demand, whether or not involving a Legal Action, by any another Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Third Party Claim”) against such ), then the Indemnified Party with respect will include in the Claim Notice (i) notice of the commencement or threat of any Legal Action relating to which such Third Party Claim within 30 days after the Indemnified Party has received written notice of the commencement of the Third Party Claim and (ii) the facts constituting the basis for such Third Party Claim and the amount of the damages claimed by the other Person, in each case to the extent known to the Indemnified Party. Notwithstanding the foregoing, no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, will relieve the Indemnifying Party of its indemnification obligations, any Liability or obligation under this Agreement except and only to the extent that the Indemnifying Party forfeits rights has suffered actual Losses directly caused by the delay or defenses by reason other deficiency.
(b) Within 30 days after the Indemnified Party’s delivery of a Claim Notice under this SECTION 8.6 (or within the shorter period, if any, during which a defense must be commenced for the preservation of rights), the Indemnifying Party may assume control of the defense of such failure. Such notice Third Party Claim by giving to the Indemnified Party shall describe written notice of the Third-intention to assume such defense, but if and only if the Indemnifying Party retains counsel for the defense of the Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by satisfactory to the Indemnified Party. The However, if a Seller is the Indemnifying Party, in no event may the Indemnifying Party shall have the right to assume, maintain control of, or participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel(i) involving criminal liability, and (ii) in which any relief other than monetary damages is sought against the Indemnified Party shall cooperate or (iii) in good faith in such defense. In which the event that the Indemnifying Party assumes the defense outcome of any Third-Party Claim, subject to Section 8.03(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal judgment or make counterclaims pertaining to any such Third-Party Claim settlement in the name and on behalf matter could reasonably be expected to adversely affect the Indemnified Party’s Tax Liability or the ability of the Indemnified PartyParty to conduct its business (collectively, clauses (i) – (iii), the “Special Claims”). The Indemnified An Indemnifying Party shall have the right to participate in the defense of will lose any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s previously acquired right to control the defense thereofof any Third Party Claim if for any reason the Indemnifying Party ceases to actively, provided competently and diligently conduct the defense.
(c) If the Indemnifying Party does not, or is not able to, assume or maintain control of the defense of a Third Party Claim in compliance with SECTION 8.6(b), the Indemnified Party will have the right to control the defense of the Third Party Claim. To the extent that the Third Party Claim does not constitute a Special Claim, the party not controlling the defense (the “Noncontrolling Party”) may participate therein at its own expense. However, if the Indemnifying Party assumes control of such defense as permitted above and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to the Third Party Claim, then the reasonable fees and disbursements expenses of such counsel shall to the Indemnified Party will be at considered and included as “Losses” for purposes of this Agreement. The party controlling the expense defense (the “Controlling Party”) will reasonably advise the Noncontrolling Party of the status of the Third Party Claim and the defense thereof and, with respect to any Third Party Claim that does not relate to a Special Claim, the Controlling Party will consider in good faith recommendations made by the Noncontrolling Party. The Noncontrolling Party will furnish the Controlling Party with such information as it may have with respect to such Third Party Claim and related Legal Actions (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and will otherwise cooperate with and assist in the defense of the Third Party Claim.
(d) Neither the Indemnifying Party nor the Indemnified PartyParty will agree to any compromise or settlement of, or the entry of any judgment arising from, the Third Party Claim without the prior written consent of the other party, which consent the other party will not unreasonably withhold or delay. Neither the Indemnified Party nor the Indemnifying Party will have any Liability with respect to any compromise or settlement of, or the entry of any judgment arising from, any Third Party Claim effected without its consent.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Surmodics Inc), Share Purchase Agreement (Surmodics Inc)
Third Party Claims. If any Indemnified (a) Any Party receives making a claim for indemnification under Section 10.2 (an “Indemnitee”) shall notify the Indemnitor of the claim in writing after receiving written notice of any Proceeding or other claim against it (if by a third party), describing the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreementclaim, the Indemnified Party amount thereof (if known and quantifiable), and the basis thereof; provided that the failure to so notify an Indemnitor shall give not relieve an Indemnitor of its obligations hereunder, except to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than extent that an Indemnitor is actually prejudiced thereby. The Indemnitor shall then have a period of thirty (30) calendar days after the receipt of such notice claim (the “Indemnity Response Period”) to notify the Indemnified Party whether the Indemnitor disputes its liability to the Indemnified Party with respect to such claim. If the Indemnitor notifies the Indemnified Party that it does not dispute the claim, the corresponding Loss will be conclusively deemed to be a liability of the Indemnitor under Section 10.2 (subject to the limitations of Section 10.2) and the Indemnitor shall pay the amount of such Third-Loss to the Indemnified Party on demand (or, in the event of a Third Party Claim, upon final judgment or settlement with respect to such claim in accordance with Section 10.5(b) below). The failure to give such prompt written notice shall not, however, relieve If the Indemnifying Indemnitor notifies the Indemnified Party of its indemnification obligations, except and only to within the extent Indemnity Response Period that the Indemnifying Indemnitor disputes its liability with respect to such claim or fails to notify the Indemnified Party forfeits rights or defenses by reason within the Indemnity Response Period whether the Indemnitor disputes the claim described in such claim notice, the Indemnitor and the Indemnified Party will proceed in good faith to negotiate a resolution of such failure. Such dispute, and if not resolved through negotiations within a period of fifteen (15) calendar days from the date of such notice by or such longer period as may be agreed to in writing, either of the Indemnitor or the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been be entitled to initiate any Proceeding to declare or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right enforce its obligations or rights with respect to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. claim as is permitted hereunder.
(b) In the event that the Indemnifying Party assumes the defense of any Third-a claim hereunder shall involve a Proceeding initiated by a third party (a “Third Party Claim, subject to Section 8.03(b”), it any alleged Indemnitor shall have the 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. The Indemnified Party shall have the right be entitled to participate in the defense of any Third-Party Claim with counsel selected by it such Proceeding or other claim giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, and at its option (subject to the Indemnifying Party’s right limitations set forth below) shall be entitled to assume the control of the defense thereof, thereof by appointing counsel reasonably acceptable to the Indemnitee to be the lead counsel in connection with such defense; provided that (i) the Indemnitee shall be entitled to participate in (but not control) the defense of such claim and to employ counsel of its choice for such purpose; provided that the fees and disbursements expenses of such separate counsel shall be at borne entirely by the expense Indemnitee; (ii) Indemnitor shall not be entitled to assume control of such defense if (A) the claim for indemnification relates to or arises in connection with any criminal proceeding, (B) the claim involves a material customer or material vendor of the Company, (C) the claim seeks an injunction or other equitable relief against an Indemnitee, (D) Losses resulting from such claim could reasonably be expected to exceed the remaining amount of indemnification available to the Indemnified PartyParty under this Agreement or (E) in the judgment of the Indemnitee’s counsel, a conflict of interest between the Indemnitee and the Indemnitor exists as a result of such claim; and (iii) if an Indemnitor shall control the defense of any such claim, such Indemnitor shall obtain the prior written consent of the Indemnitee (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of a claim; provided, however, subject to the limitations set forth in Section 10.2, an Indemnitor may settle or consent to the entry of judgment in respect of such claim without the consent of the Indemnitee, if such settlement or judgment is (w) solely for money damages which are fully and completely indemnified by the Indemnitor, (x) includes a full and unconditional release of the Indemnitee and its Affiliates from any further liability in respect of such claim and (y) does not contain an admission of wrongdoing on the part of the Indemnitee or any of its Affiliates. If the Indemnitor makes any payments with respect to any claim pursuant to Section 10.2, the Indemnitor shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnitee to any insurance benefits or other claims of the Indemnitee with respect to such claim. Any member of the Buyer Indemnified Parties who is indemnified pursuant to Article 10, shall assign or otherwise cooperate with Seller in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Losses for which any member of the Buyer Indemnified Parties has been paid. Any such Buyer Indemnified Parties shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any such Buyer Indemnified Party and which relates to Losses for which (but only to the extent) such member of the Buyer Indemnified Parties has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery).
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Civitas Resources, Inc.), Membership Interest Purchase Agreement (Civitas Resources, Inc.)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) 30 calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses or is otherwise prejudiced by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense; provided, that if the Indemnifying Party is Seller, Seller shall not have the right to defend or direct the defense of any such Third Party Claim that seeks an injunction or other equitable relief against the Indemnified Party. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b8.05(b), it shall have the 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. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the . The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party which the Indemnifying Party is unable to or refuses to assert; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is necessary or appropriate. 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, subject to Section 8.05(b), 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. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available (subject to the provisions of Section 4.06) records relating to such Third-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third-Party Claim.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Lithia Motors Inc), Stock Purchase Agreement (Lithia Motors Inc)
Third Party Claims. (a) If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought a Proceeding by any a Person who is not a party to this Agreement hereto or an Affiliate of thereof (other than in connection with a party to this Agreement or a Representative of the foregoing Tax Claim) (a “Third-Party Claim”) is made, commenced or threatened in writing against any Person entitled to indemnification pursuant to Section 9.2 (an “Indemnified Party”), and if such Person intends to seek indemnity with respect thereto under this Article 9, such Indemnified Party with respect shall promptly give a Notice of Claim to which the Indemnifying party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”); provided that the failure to give such Notice of Claim shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is obligated to provide indemnification under this Agreement, the Indemnified actually prejudiced thereby.
(b) The Responsible Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than have thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall notnotice, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving providing written notice to the Indemnified Party, to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party and at the expense of the Responsible Party, of the settlement or defense thereof, if (i) the Responsible Party conducts the defense of any such Third-Party Claim at actively and diligently, (ii) the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and Responsible Party acknowledges in writing its obligation to indemnity the Indemnified Party shall cooperate for the Losses in respect of such Third-Party Claim, (iii) such Third-Party Claim seeks solely monetary damages, the amount of which will be paid by the Responsible Party, and does not involve criminal or quasi-criminal allegations, (iv) to the extent the Responsible Party is a party to the Proceeding, the Indemnified Party has not determined in good faith that joint representation would be inappropriate because of a conflict of interest and (v) the amount of Losses in respect of such defenseThird-Party Claim, assuming such Losses are ultimately awarded to the Indemnified Party, would not exceed the limitations on Sellers’ obligations set forth in this Article 9. In If the event that the Indemnifying Responsible Party assumes the defense of any such Third-Party Claim, subject to Section 8.03(b)the Indemnified Party shall, it shall in its sole discretion, have the right to take employ at the Indemnified Party’s cost (unless the Indemnified Party determines in good faith that there exists a conflict of interest that would make it inappropriate for the same counsel to represent both the Indemnified Party and the Responsible Party, then the Indemnified Party shall be entitled to retain a single firm to serve as its own counsel, at the expense of the Responsible Party) separate counsel (who may be selected by the Indemnified Party in its sole discretion) in any such action as it deems necessary and to avoidparticipate in the defense thereof, disputeprovided, defend, appeal that the Indemnified Party may not file any papers or make counterclaims pertaining consent to the entry of any judgment or enter into any settlement with respect to such Third-Party Claim in without the name prior written consent of the Responsible Party. The Responsible Party, and on behalf not the Indemnified Party, shall have the exclusive right to compromise or settle any Third-Party Claim of which it elects to conduct the defense and settlement; provided, that the prior written consent of the Indemnified PartyParty shall be required with respect to any such compromise or settlement if (A) the Indemnified Party or any of its Affiliates or representatives would be required to pay any monetary damages as a result of such compromise or settlement, (B) such compromise or settlement contains any sanction or restriction that would adversely affect the conduct of any business of the Indemnified Party or its Affiliates in any material respect, (C) such compromise or settlement does not fully and unconditionally release the Indemnified Party with respect to such Third-Party Claim or (D) such compromise or settlement includes a finding or admission of any violation of Law by the Indemnified Party or any of its Affiliates or representatives. The So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. If the Responsible Party elects to conduct the defense and settlement of a Third-Party Claim, then the Indemnified Party shall have the right to participate pay or settle such Third-Party Claim; provided that in such event it shall waive any right to indemnity by the Responsible Party for all Losses related to such claim unless the Responsible Party shall have consented to such payment or settlement.
(c) If the Responsible Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s Notice of Claim hereunder that it elects to undertake the defense thereof, or if the conditions set forth in clauses (i) through (v) of Section 9.3(b) are not satisfied, 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 the Responsible Party shall reimburse the Indemnified Party for the costs of defending against such Third-Party Claim (including reasonable attorneys’ fees and expenses of a single firm) and shall remain otherwise responsible for any indemnifiable Losses with respect to amounts arising from or related to such Third-Party Claim.
(d) All of the Parties shall cooperate in the defense or prosecution of any Third-Party Claim with counsel selected by it subject to in respect of which indemnity may be sought hereunder, and Purchaser shall (and shall cause the Indemnifying Party’s right to control the defense thereofCompany to) furnish such records, provided that the fees information and disbursements of testimony, and attend such counsel shall conferences, discovery proceedings, hearings, trials and appeals, as may be at the expense of the Indemnified Partyreasonably requested in connection therewith.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Better Choice Co Inc.), Stock Purchase Agreement (Better Choice Co Inc.)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) 30 calendar days after receipt of such notice of such Third-Third Party Claim. The failure to give such prompt written notice shall not, however, only relieve the Indemnifying Party of its indemnification obligations, except and only obligations to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failureany prejudice resulting therefrom. Such notice by the Indemnified Party shall describe the Third-Third Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Third Party Claim at the Indemnifying Party’s 's expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense; provided, that if the Indemnifying Party is the Contributor and/or Warrantors, such Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim that (i) seeks an injunction or other equitable relief against the Indemnified Party, (ii) seeks damages in excess of the overall indemnification limits set forth in Section 9.05(a) (and after deducting the amounts of any claims previously offset against this cap), or (iii) alleges criminal violations by the Companies. In the event that the Indemnifying Party assumes the defense of any Third-Third Party Claim, subject to Section 8.03(b9.06(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third-Third Party Claim with counsel selected by it subject to the Indemnifying Party’s 's right to control the defense thereof, provided that the . The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if the Indemnifying Party does not have the right to defend or direct the defense of such Third Party Claim pursuant to this Section 9.06(a) or, if in the reasonable opinion of counsel to the Indemnified Party, there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, then, in any such case, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party. 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, subject to Section 9.06(b), 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. Warrantors, Contributors and Beneficiary shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available (subject to the provisions of Section 6.06) records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.
Appears in 2 contracts
Samples: Stock Contribution Agreement, Stock Contribution Agreement (Apricus Biosciences, Inc.)
Third Party Claims. If any Indemnified Party receives notice demand, claim, action or cause of action, suit, proceeding or investigation (collectively, the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) is brought against an Indemnified Party for which the Indemnified Party intends to seek indemnity from the other party hereto (the “Indemnifying Party”), then the Indemnified Party within ten (10) days after such Indemnified Party’s receipt of the Claim, shall notify the Indemnifying Party with respect pursuant to this Article 11., which notice shall contain a reasonably thorough description of the nature and amount of the Claim (the “Claim Notice”). The Indemnifying Party shall 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 the terms 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 the Claim shall not relieve the Indemnifying Party from any liability which the Indemnifying Party is obligated may have pursuant to provide indemnification under this Article 11., except to the extent that such failure to notify the Indemnifying Party prejudices the Indemnifying Party. The Indemnified Party shall use all reasonable efforts to assist the Indemnifying Party in the vigorous defense of the Claim. All costs and expenses incurred by the Indemnified Party in defending the Claim shall be paid by the Indemnifying Party. If, however, the Indemnified Party desires to participate in any such defense or settlement, it may do so at its sole cost and expense (it being understood that the Indemnifying Party shall be entitled to control the defense). The Indemnified Party shall not settle the Claim. If the Indemnifying Party does not elect to control the defense of the Claim, within the aforesaid ten (10) day period by proper notice pursuant to the terms 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 the aforesaid ten (10) day period by proper notice pursuant to this Article 11., shall be deemed to be an election by the Indemnifying Party not to control the defense of the Claim); provided, however, that the Indemnifying Party shall be entitled, if it so desires, to participate therein (it being understood that in such circumstances, the Indemnified Party shall be entitled to control the defense). Regardless of which party has undertaken to defend any claim, the Indemnifying Party may, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any such claim or demand; provided however, that if any settlement would result in the imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the Indemnified Party, the consent of the Indemnified Party shall be a condition to any such settlement. Notwithstanding the foregoing provisions of this Article 11., as a condition to the Indemnifying Party either having the right to defend the Claim, or having control over settlement as indicated in this Article 11., the Indemnifying Party shall execute an agreement, satisfactory to the other party acknowledging its liability for indemnification pursuant to this Article 11. Whether the Indemnifying Party shall control and assume the defense of the Claim or only participate in the defense or settlement of the Claim, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereofand its counsel access, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure during normal business hours, to give such prompt written notice shall notall relevant business records and other documents, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right permit them to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense consult with its employees and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b), it shall have the 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. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall be at the expense of the Indemnified Party.
Appears in 2 contracts
Samples: Share Exchange Agreement (Media Technologies, Inc.), Share Exchange Agreement (Town & Country Appraisal Service, Inc.)
Third Party Claims. If In the event that a party (the “Indemnitee”) desires to make a claim against another party (the “Indemnitor”) pursuant to Section 7.1 or Section 7.2 in connection with any Indemnified Party receives notice of action, suit, proceeding or demand at any time instituted against or made upon the assertion or commencement of any Action made or brought Indemnitee by any Person who is not a third party to this Agreement or an Affiliate of a party to this Agreement or a Representative of for which the foregoing Indemnitee may seek indemnification hereunder (a “Third-Third Party Claim”) against ), the Indemnitee shall promptly notify, in writing, the Indemnitor of such Indemnified Third Party Claim and of the Indemnitee’s claim of indemnification with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party thereto. The Indemnitor shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than have thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve notify the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights Indemnitee if he/she or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that it has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, elected to assume the defense of any Third-such Third Party Claim at Claim. If the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes Indemnitor elects to assume the defense of any Third-such Third Party Claim, subject the Indemnitor shall be entitled at his/her or its own expense to Section 8.03(b), it shall have conduct and control the right to take defense and settlement of such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third Party Claim in through counsel of his/her or its own choosing; provided, however, that the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to Indemnitee may participate in the defense of any Third-such Third Party Claim with his/her or its own counsel selected by it subject at his/her or its own expense and the Indemnitor may not settle any Third Party Claim without the Indemnitee’s consent, which shall not be unreasonably withheld. If the Indemnitor fails to notify the Indemnifying PartyIndemnitee within thirty (30) days after receipt of the Indemnitee’s right written notice of a Third Party Claim, the Indemnitee shall be entitled to control assume the defense thereof, provided that the fees and disbursements of such counsel shall be Third Party Claim at the expense of the Indemnified PartyIndemnitor; provided, however, that the Indemnitee may not settle any Third Party Claim without the Indemnitor’s consent, which shall not be unreasonably withheld.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Bridgeline Digital, Inc.), Asset Purchase Agreement (Bridgeline Digital, Inc.)
Third Party Claims. If (a) In the event that any Indemnified Party asserts a claim for indemnification or receives notice of the assertion of any claim or of the commencement of any Action made action or brought proceeding by any Person who is not a party to this Agreement or an Affiliate affiliate of a party to this Agreement or a Representative in respect of the foregoing (a “Third-Party Claim”) against which such Indemnified Party with respect is entitled to which the indemnification by an Indemnifying Party is obligated to provide indemnification under this AgreementAgreement (a "Third Party Claim"), the Indemnified Party shall give written notice to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30the "Third Party Claims Notice") calendar within 20 days after receipt asserting or learning of such notice Third Party Claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim), together with a statement specifying the basis of such Third-Third Party Claim. The failure to give such prompt written notice Third Party Claim Notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall (i) describe the Third-Party Claim claim in reasonable detail, shall include copies of all material written evidence thereof and shall (ii) indicate the estimated amountamount (estimated, if reasonably practicablenecessary, and to the extent feasible) of the Loss Losses that has have been or may be sustained suffered by the Indemnified Party. The Indemnifying Party must provide written notice to the Indemnified Party that it is either (i) assuming responsibility for the Third Party Claim or (ii) disputing the claim for indemnification against it (the "Indemnification Notice") The Indemnification Notice must be provided by the Indemnifying Party to the Indemnified Party within 15 days after receipt of the Third Party Claims Notice or within such shorter time as may be necessary to give the Indemnified Party a reasonable opportunity to respond to such Third Party Claim (the "Indemnification Notice Period").
(b) If the Indemnifying Party provides an Indemnification Notice to the Indemnified Party within the Indemnification Notice Period that it assumes responsibility for the Third Party Claim (the "Defense Notice"), the Indemnifying Party shall conduct at its expense the defense against such Third Party Claim in its own name, or if necessary in the name of the Indemnified Party. The Defense Notice shall specify the counsel the Indemnifying Party will appoint to defend such claim ("Defense Counsel"); provided, however, that the Indemnified Party shall have the right to participate inapprove the Defense Counsel, which approval shall not be unreasonably withheld or by giving written notice delayed, except that such approval may be withheld if the defense is to be in the name of the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes fails to give the defense of any Third-Indemnification Notice within the Indemnification Notice Period, the Indemnified Party Claim, subject to Section 8.03(b), it shall have the right to take conduct the defense and to compromise and settle such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third Party Claim without the prior consent of the Indemnifying Party and subject to the provisions of Section 7.6.1, the Indemnifying Party will be liable for all costs, expenses, settlement amounts or other Losses paid or incurred in connection therewith.
(c) In the event that the Indemnifying Party provides in the name Indemnification Notice that it disputes the claim for indemnification against it, the Indemnified Party shall have the right to conduct the defense and on behalf to compromise and settle such Third Party Claim, without the prior consent of the Indemnifying Party. Once such dispute has been finally resolved in favour of indemnification by a court or other tribunal of competent jurisdiction or by mutual agreement of the Indemnified Party and Indemnifying Party, subject to the provisions of Section 7.6.1, the Indemnifying Party shall within 10 days of the date of such resolution or agreement, pay to the Indemnified Party all Losses paid or incurred by the Indemnified Party in connection therewith.
(d) In the event that the Indemnifying Party delivers an Indemnification Notice pursuant to which it elects to conduct the defense of the Third Party Claim, the Indemnifying Party shall be entitled to have the exclusive control over the defense of the Third Party Claim and the Indemnified Party will cooperate in good faith with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party. The Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. The Indemnifying Party will not settle the Third Party Claim or cease to defend against any Third Party Claim as to which it has delivered an Indemnification Notice (as to which it has assumed responsibility for the Third Party Claim), without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed; provided, however, such consent may be withheld if, among other reasons, as a result of such settlement or cessation of defense, (i) injunctive relief or specific performance would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder.
(e) If an Indemnified Party refuses to consent to a bona fide offer of settlement which the Indemnifying Party wishes to accept, which provides for a full release of the Indemnified Party and its affiliates relating to the Third Party Claims underlying the offer of settlement and solely for a monetary payment, the Indemnified Party may continue to pursue such matter, free of any Third-Party Claim with counsel selected participation by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall be at the sole expense of the Indemnified Party. In such an event, the obligation of the Indemnifying Party shall be limited to the amount of the offer of settlement which the Indemnified Party refused to accept plus the reasonable costs and expenses of the Indemnified Party incurred prior to the date the Indemnifying Party notified the Indemnified Party of the offer of settlement.
(f) Notwithstanding clause (d) above, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of (x) that part of any Third Party Claim that (i) seeks a temporary restraining order, a preliminary or permanent injunction or specific performance against the Indemnified Party, (ii) involves criminal allegations against the Indemnified Party or (iii) may lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder and (y) the entire Third Party Claim if such Third Party Claim would impose liability on the part of the Indemnified Party in an amount which is greater than the amount as to which the Indemnified Party is entitled to indemnification under this Agreement.
(g) A failure by an Indemnified Party to give timely, complete or accurate notice as provided in this Section 7.4.2 will not affect the rights or obligations of any party hereunder except and only to the extent that, as a result of such failure, any party entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise directly and materially damaged as a result of such failure to give timely notice.
Appears in 2 contracts
Samples: Limited Partnership Unit Purchase Agreement (MDC Partners Inc), Limited Partnership Unit Purchase Agreement (MDC Partners Inc)
Third Party Claims. If any (i) Without limiting the provisions of Section 6.5(a), if the Indemnified Party receives notice or otherwise learns of the assertion or commencement of any Action made or brought by any a Person who is not a party to this Agreement member of either Group of any claim or an Affiliate the commencement of any Action (in each case, a party to this Agreement or a Representative of the foregoing (a “Third-"Third Party Claim”") against such Indemnified Party with respect to which the Indemnifying Party is may be obligated to provide indemnification under this AgreementArticle VI, the Indemnified Party shall give a Claim Notice as provided in Section 6.5 to the Indemnifying Party reasonably prompt written of the Third Party Claim. Such Claim Notice shall be given within fifteen (15) Business Days after receipt by the Indemnified Party of notice thereof, but of such Third Party Claim and shall be accompanied by reasonable supporting documentation submitted by such third party (to the extent then in any event not later than the possession of the Indemnified Party). Within thirty (30) calendar days after receipt delivery of such Claim Notice, the Indemnifying Party (if it agrees that the Third Party Claim is subject to indemnification under this Agreement) may, upon written notice thereof to the Indemnified Party, assume control of the defense of such ThirdThird Party Claim with counsel reasonably satisfactory to the Indemnified Party. During any period in which the Indemnifying Party has not so assumed control of such defense, the Indemnified Party shall control such defense. Notwithstanding the foregoing, no Claim Notice need be given with respect to Third Party Claims existing as of the date of this Agreement. Except for those Third Party Claims set forth on Schedule 6.5(c)(i), all Third Party Claims existing as of the date of this Agreement shall be a Cloud Peak Liability and Cloud Peak shall assume control of the defense related to all such claims.
(ii) The Party not controlling such defense (the "Non-Party Claim. The failure to give such prompt written notice shall notControlling Party") may participate therein at its own expense; provided, however, relieve that if the Indemnifying Party assumes control of its indemnification obligations, except such defense and only to the extent Indemnified Party reasonably concludes that the Indemnifying Party forfeits rights and the Indemnified Party have materially conflicting interests or materially different defenses by reason available with respect to such Third Party Claim, the reasonable fees and expenses of such failure. Such notice by separate counsel to the Indemnified Party shall describe be considered "Liabilities" for purposes of this Agreement; provided, further, that the ThirdIndemnifying Party shall only be responsible for the fees or expenses of not more than one separate legal firm (in addition to any fees or expenses for any local counsel), unless otherwise agreed to, for all of the Indemnified Parties; provided, however, that in the event that such legal firm is conflicted amongst the Indemnified Parties, then the Indemnifying Party shall be responsible for the fees or expenses of up to two legal firms in any single jurisdiction for all of the Indemnified Parties. The Party controlling such defense (the "Controlling Party") shall keep the Non-Controlling Party reasonably advised of the status of such Third Party Claim in reasonable detail, shall include copies of all material written evidence and the defense thereof and shall indicate consider in good faith recommendations made by the estimated amountNon-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such Information as it may have with respect to such Third Party Claim (including copies of any summons, if reasonably practicablecomplaint or other pleading that may have been served on such Party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such Third Party Claim. If the Indemnifying Party has elected to assume the defense of the Loss that Third Party Claim but has been specified, and continues to assert, any reservations or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in, or by giving written exceptions in such notice to the Indemnified Party, then, in any such case, the reasonable fees and expenses of one separate counsel for all Indemnified Parties shall be borne by the Indemnifying Party, but the Indemnifying Party shall be entitled to reimbursement by the Indemnified Party for payment of any such fees and expenses to the extent that it establishes that such reservations and exceptions were proper.
(iii) If an Indemnifying Party elects not to assume responsibility for defending a Third Party Claim, or fails to notify an Indemnified Party of its election as provided in Section 6.5(c)(i), the cost and expense of the Indemnified Party incurred in defending such Third Party Claim shall be additional indemnified Liabilities.
(iv) The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such Third Party Claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnified Party shall not be required if (A) the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment, (B) such settlement or judgment includes a full, complete and unconditional release of the Indemnified Party from further Liability, (C) such settlement does not create any financial or other obligation on the part of the Indemnified Party and (D) such settlement does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an Indemnified Party. Unless the Indemnifying Party has failed to assume the defense of any Third-the Third Party Claim at in accordance with the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and terms of this Agreement the Indemnified Party shall cooperate in good faith in such defense. In not agree to any settlement of, or the event that the Indemnifying Party assumes the defense entry of any Third-Party Claimjudgment arising from, subject to Section 8.03(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third Party Claim in without the name and on behalf prior written consent of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall be at the expense of the Indemnified Party.
Appears in 2 contracts
Samples: Master Separation Agreement (Cloud Peak Energy Inc.), Master Separation Agreement (Cloud Peak Energy Inc.)
Third Party Claims. If any The Indemnifying Party (through the Stockholders’ Representative in the event the Indemnified Party receives notice of is a Company Indemnified Party) shall be entitled, at its own expense, to assume and control the assertion or commencement defense of any Action made or brought Claims based on claims asserted by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing third parties (a “Third-Third Party ClaimClaims”) against such Indemnified Party with respect to which ), through counsel chosen by the Indemnifying Party is obligated (or in the case of the Company Indemnified Parties, by the Stockholders’ Representative), if it gives written notice of its intention to provide indemnification under this Agreement, do so to the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than Parties within thirty (30) calendar days after of the receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall notthe applicable Claim Notice; provided, however, relieve that the Indemnifying Indemnified Parties may at all times participate in such defense at their expense provided, further, that if any such Third Party Claim relates to Taxes of its indemnification obligationsPGI, except and only any PGI Subsidiary or any JV Entity or seeks non-monetary damages or asserts damages in excess of the Indemnity Holdback Amount against a Company Indemnified Party, then, notwithstanding anything in this Agreement to the extent that contrary, the Indemnifying Party forfeits rights Company (or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, a Subsidiary of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party Company) shall have the right to participate incontrol any such Third Party Claim. Without limiting the foregoing, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes exercises the right to undertake any such defense of any Third-against a Third Party Claim, subject to Section 8.03(b), it shall have the 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. The Indemnified Party shall have cooperate with the right Indemnifying Party in such defense and make available to participate in the defense of any Third-Indemnifying Party Claim with counsel selected (unless prohibited by it subject to Law), at the Indemnifying Party’s right expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. No compromise or settlement of such Third Party Claim may be effected by either the Indemnified Party, on the one hand, or the Indemnifying Party (or in the case of the Company Indemnified Parties, the Stockholders’ Representative), on the other hand, without the other’s consent (which shall not be unreasonably withheld or delayed) unless (a) there is no finding or admission of any violation of Law and no effect on any other claims that may be made against such other party and (b) each Indemnified Party that is party to control the defense thereofsuch claim is released from all liability with respect to such claim, provided that the fees and disbursements Stockholders’ Representative shall be deemed to have consented to any proposed compromise or settlement to which it has not objected to by written notice within 30 days after notice of such counsel shall be at the expense of the proposed compromise or settlement was provided by a Company Indemnified Party.
Appears in 2 contracts
Samples: Merger Agreement (Otto Alexander), Merger Agreement (Paramount Group, Inc.)
Third Party Claims. If any Indemnified Party receives notice (a) Without limiting the general application of the assertion or commencement other provisions of any Action made or brought by any this Article 7, if another Person who is not a party to this Agreement alleges facts that, if true, would mean that a party has breached its representations and warranties in this Agreement, the party for whose benefit the representations and warranties are made will be entitled to indemnity for those allegations and demands and related Losses under and pursuant to this Article 7. If the Indemnified Party seeks indemnity under this Article 7 in respect of, arising out of or an Affiliate of involving a claim or demand, whether or not involving a Proceeding, by another Person not a party to this Agreement or a Representative of the foregoing (a “Third-Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement), then the Indemnified Party shall give will include in the Indemnifying Claim Notice (i) notice of the commencement or threat of any Proceeding relating to such Third Party reasonably prompt written notice thereof, but in any event not later than Claim within thirty (30) calendar days after receipt of such the Indemnified Party has received written notice of the commencement or threat of the Third Party Claim and (ii) the facts constituting the basis for such Third-Third Party ClaimClaim and the amount of the damages claimed by the other Person, in each case to the extent known to the Indemnified Party. The failure to give such prompt written notice shall notNotwithstanding the foregoing, however, no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party will relieve the Indemnifying Party of its indemnification obligations, any Liability or obligation under this Agreement except and only to the extent the Indemnifying Party has been materially prejudiced by the delay or other deficiency.
(b) Within thirty (30) days after the Indemnified Party’s delivery of a Claim Notice under this Section 7.6, the Indemnifying Party may assume control of the defense of such Third Party Claim by giving to the Indemnified Party written notice of the intention to assume such defense, but if and only if the Indemnifying Party further:
(i) acknowledges in writing to the Indemnified Party that any Losses (excluding punitive damage) that may be assessed in connection with the Third Party Claim constitute Losses for which the Indemnified Party will be indemnified pursuant to this Article 7 except to the extent of a final judgment that finds that the Indemnified Party acted with gross negligence or willful misconduct and that the Indemnifying Party forfeits rights or defenses by reason will advance all expenses and costs of such failure. Such notice by defense; and
(ii) retains counsel for the defense of the Third Party Claim reasonably satisfactory to the Indemnified Party shall describe and furnishes to the Third-Indemnified Party Claim in reasonable detail, shall include copies evidence satisfactory to the Indemnified Party that the Indemnifying Party has and will have sufficient financial resources to fund on a current basis the cost of such defense and pay all material written evidence thereof and shall indicate Losses that may arise under the estimated amountThird Party Claim.
(c) However, if reasonably practicablethe Seller is the Indemnifying Party, of in no event may the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to assume, maintain control of, or participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel(A) involving criminal liability, and (B) in which any relief other than monetary damages is sought against the Indemnified Party shall cooperate or (C) in good faith in such defense. In which the event that the Indemnifying Party assumes the defense outcome of any Third-Party Claim, subject to Section 8.03(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal Judgment or make counterclaims pertaining to any such Third-Party Claim settlement in the name and on behalf matter could reasonably be expected to materially adversely affect the Indemnified Party’s Tax Liability or the ability of the Indemnified PartyParty to conduct its business (collectively, clauses (A) - (C), the “Special Claims”). The Indemnified An Indemnifying Party shall have the right to participate in the defense of will lose any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s previously acquired right to control the defense thereofof any Third Party Claim if for any reason the Indemnifying Party ceases to actively, provided competently and diligently conduct the defense.
(d) If the Indemnifying Party does not, or is not able to, assume or maintain control of the defense of a Third Party Claim in compliance with Section 7.6(b), the Indemnified Party will have the right to control the defense of the Third Party Claim. For avoidance of doubt, it is expressly understood that Seller has no obligation whatsoever to assume, control or otherwise defend a Third Party Claim. If the Indemnified Party controls the defense of the Third Party Claim, the Indemnifying Party agrees to pay to the Indemnified Party all reasonable attorneys’ fees and other costs and expenses of defending the Third Party Claim promptly upon the determination that the Indemnified Party is entitled to indemnification by the Indemnifying Party pursuant to this Agreement to be satisfied solely to the extent set forth in Section 7.8 below. To the extent that the Third Party Claim does not constitute a Special Claim, the party not controlling the defense (the “Noncontrolling Party”) may participate therein at its own expense. However, if the Indemnifying Party assumes control of such defense as permitted above and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to the Third Party Claim, then the reasonable fees and disbursements expenses of counsel to the Indemnified Party will be considered and included as “Losses” for purposes of this Agreement. The party controlling the defense (the “Controlling Party”) will reasonably advise the Noncontrolling Party of the status of the Third Party Claim and the defense thereof and, with respect to any Third Party Claim that does not relate to a Special Claim, the Controlling Party will consider in good faith recommendations made by the Noncontrolling Party. The Noncontrolling Party will furnish the Controlling Party with such counsel shall be at information as it may have with respect to such Third Party Claim and related Proceedings (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the expense same) and will otherwise cooperate with and assist in the defense of the Third Party Claim.
(e) The Indemnifying Party will not agree to any settlement of, or consent to the entry of any Judgment (other than a Judgment of dismissal on the merits) arising from, any such Third Party Claim without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnified Party will not be required if the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or any Judgment and such settlement or Judgment includes a full, complete and unconditional release of the Indemnified Party from further Liability. The Indemnified Party will not agree to any settlement of, or the entry of any Judgment (other than a Judgment of dismissal on the merits) arising from, any such Third Party Claim without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld, delayed or conditioned.
Appears in 2 contracts
Samples: Secured Creditor Asset Purchase Agreement (Interpace Diagnostics Group, Inc.), Secured Creditor Asset Purchase Agreement (Cancer Genetics, Inc)
Third Party Claims. If any Each Indemnified Party receives notice of the assertion or commencement shall promptly notify in writing each Indemnifying Party of any Action made claim or brought legal action by any Person who is not a third party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against of which it becomes aware and for which it is entitled to indemnification from such Indemnifying Party under this Agreement; provided, however, that the failure to promptly give such notice of a Claim shall not constitute a waiver or release of the Indemnified Party’s right to indemnity with respect to such Claim, except to the extent such failure prejudices the position of the Indemnifying Party with respect to such Claim. The Indemnifying Party shall be obligated to defend at the Indemnifying Party’s sole expense any litigation, arbitration or other administrative or adversarial proceeding against the Indemnified Party relating to any Claim for which the Indemnifying Party is obligated has agreed to provide indemnification indemnify and hold the Indemnified Party harmless under this Agreement. The Indemnifying Party shall be entitled to assume control of and appoint lead counsel for the defense of such Claim; provided, however, that to exercise such rights the Indemnifying Party must give notice to the Indemnified Party within 30 days after such receipt from the Indemnified Party of written notice of such Claim whether it is assuming control of and appointing lead counsel for such defense. Any Indemnified Party is authorized prior to and during such 30-day period to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party (and of which it shall have given notice and opportunity to comment to the Indemnifying Party) and that is not prejudicial to the Indemnifying Party. If the Indemnifying Party does not give such notice within such 30-day period, then the Indemnified Party shall give have the right to assume control of the defense thereof at the reasonable cost and expense of the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights is obligated to indemnify for such Claim under this Article 14), subject to the limitations of liability and other limits set forth in this Article 14; provided, however, that notwithstanding the 30-day period referenced above, the Indemnifying Party may at any time before the settlement or defenses by reason final determination of such failure. Such notice by an ongoing lawsuit admit in writing its liability to indemnify the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to thereafter assume the defense of any Third-Party the Claim at (subject to the Indemnifying Party’s expense limitations of liability and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate other limits set forth in good faith in such defensethis Article 14). In the event that If the Indemnifying Party assumes the defense of any Third-Party Claim, subject to a Claim in accordance with the provisions of this Section 8.03(b14.5(c), it the Indemnifying Party shall have control over the right defense and/or settlement of such Claim; provided, however, that the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement, compromise, admission or acknowledgement of the validity of such Claim if the settlement does not unconditionally release the Indemnified Party from all liabilities and obligations with respect to take such action as it deems necessary to avoid, dispute, defend, appeal Claim or make counterclaims pertaining to any such Third-Party Claim in the name and on behalf of settlement imposes injunctive or other equitable relief against the Indemnified Party. The However, the Indemnified Party shall have the right to participate with the Indemnifying Party in the defense of any Thirdsuch Claim at its own expense. The Indemnified Party shall assist and cooperate in the prosecution or defense of such Claims; provided, however, such assistance or cooperation shall not include the making of any related counterclaim or cross-complaint against any Person who is an affiliate of Seller or a past, present or future manager, member, officer, director, trustee, employee or partner of Seller or of an affiliate of Seller. Regardless of which Party has assumed the control of the defense of any Claim in accordance with counsel selected by it subject to this Section 14.5(c), the Indemnified Party shall obtain the prior written consent of the Indemnifying Party’s right to control the defense thereofParty (which shall not be unreasonably withheld, provided that the fees and disbursements conditioned or delayed) before entering into any settlement, compromise, admission or acknowledgement of such counsel shall be at the expense of the Indemnified PartyClaim.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Ausam Energy Corp), Purchase and Sale Agreement (Ausam Energy Corp)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”i) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty Within fifteen (3015) calendar days after receipt of such notice of such Third-Party Claim. The failure to commencement of any action by any third party evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, Caldera shall give such prompt SCO written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason thereof together with a copy of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detailclaim, shall include copies of all material written evidence thereof process or other legal pleading, 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 SCO shall have the right to participate inundertake the defense, thereof through a legal representative of SCO's own choosing.
(ii) In the event that SCO, by the thirtieth day after receipt of notice of any such claim (or, if earlier, by the tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by giving written default in favor of the person asserting such claim), does not elect to defend against such claim, Caldera (upon further notice to SCO) will have the Indemnified Partyright to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of SCO subject to the right of SCO to assume the defense of such claims at any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counseltime prior to settlement, and the Indemnified Party shall cooperate in good faith in such defensecompromise or final determination thereof. In the event that the Indemnifying Party assumes the The reasonable costs of defense of any Third-Party Claim, subject to Section 8.03(bthird party action or claim by Caldera shall be paid from the Escrow Shares.
(iii) Notwithstanding Sections 11.5(e)(i) and (ii), it Caldera ---------------------------- shall have the right to take such retain control of the defense of any third party action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Party Claim claim described in Section 11.5(e)(i) which involves potential Losses in ------------------ excess of the value of the Escrow Shares remaining in the name and on behalf of the Indemnified PartyEscrow Account or could reasonably be expected to materially affect Caldera's on-going operations. The Indemnified Party In such event, SCO shall have the right to participate in be present at the negotiation, defense and settlement of such action or claim. Caldera shall not agree to any settlement of any Third-Party Claim with counsel selected by it subject to such action or claim without the Indemnifying Party’s right to control the defense thereofconsent of SCO, provided that the fees and disbursements of such counsel which shall not be at the expense of the Indemnified Partyunreasonably withheld.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Tarantella Inc), Agreement and Plan of Reorganization (Tarantella Inc)
Third Party Claims. If any Indemnified Party receives notice of In the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate event Parent becomes aware of a third party to this Agreement or a Representative of the foregoing claim (a “Third-Third Party Claim”) which Parent reasonably believes may result in a demand against the Escrow Fund or for other indemnification pursuant to this Article VII, Parent shall notify the Stockholder Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party, such Indemnified Indemnifying Party) of such Third Party with respect to which Claim, and the Stockholder Representative shall be entitled on behalf of the Stockholders (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party, such Indemnifying Party is obligated shall be entitled), at its expense, to provide indemnification under this Agreementparticipate in, but not to determine or conduct, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt defense of such notice of such Third-Third Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 Parent shall have the right in its sole discretion to participate inconduct the defense of, or by giving written notice and to settle, any such Third Party Claim; provided, however, that except with the Indemnified consent of the Stockholder Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party, to assume the defense such Indemnifying Party), no settlement of any Third-such Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the shall be determinative of whether an Indemnified Party shall cooperate is entitled to indemnification hereunder in good faith in respect of such defenseThird Party Claim or the amount of Losses relating to such matter. In the event that the Stockholder Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party assumes Party, such Indemnifying Party) has consented to any such settlement, the defense Stockholders shall have no power or authority to object under any provision of this Article VII to the amount of any Third-claim by Parent against the Escrow Fund in respect of such Third Party Claim. In the event that the Stockholder Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party, such Indemnifying Party) does not consent to any such settlement, and the Indemnified Parties wish to seek indemnification hereunder in respect of such Third Party Claim, subject to Section 8.03(b), it shall have the 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 then the Indemnified Party. The Indemnified Party Parties shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject make such indemnification claims pursuant to the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall be at the expense of the Indemnified Partyprocedures set forth in Section 7.4.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Salesforce Com Inc)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing Third Party (a “Third-Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Third Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses is actually prejudiced by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Third Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense; provided, that the Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim where the primary remedy sought is seeking an injunction or other equitable relief against the Indemnified Party. In the event that the Indemnifying Party assumes the defense of any Third-Third Party Claim, subject to Section 8.03(b8.05(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third-Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the . The fees and disbursements of such counsel shall be at the expense of the Indemnified Party; provided, that if in the reasonable opinion of counsel to the Indemnified Party, there exists an actual and material conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. 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, subject to Section 8.05(b), 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. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available (subject to the provisions of Section 5.06) records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.
Appears in 2 contracts
Samples: Stock Purchase Agreement (BurgerFi International, Inc.), Stock Purchase Agreement (BurgerFi International, Inc.)
Third Party Claims. The party making a claim under this Article VIII is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Article VIII is referred to as the “Indemnitor”. If any Indemnified Party receives notice of the assertion or commencement of any Action Suit made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party Indemnitor is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably Indemnitor prompt written notice thereof, but in any event not later than thirty thereof (30) calendar days after receipt of such notice of such Third-Party Claima “Claim Notice”). The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party Indemnitor of its indemnification obligations, except and only to the extent that such failure materially prejudices the Indemnifying Indemnitor’s ability to defend against the Third-Party forfeits rights or defenses by reason of such failureClaim. Such notice Claim Notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence thereof served with respect to the Third-Party Claim and all correspondence from or to such third party (or its representatives) related to the matter giving rise to such Third-Party Claim and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been under the Third-Party Claim. In the case of such Third-Party Claim, the Indemnitor shall have 30 days from its receipt of the Claim Notice to notify the Indemnified Party whether it admits or may be sustained by denies its obligation to defend the Indemnified Party against such Claim under this Article VIII. If the Indemnitor does not notify the Indemnified Party within such 30-day period regarding whether the Indemnitor admits or denies its obligation to defend the Indemnified Party, the Losses for which the Indemnified Party is seeking indemnity shall be conclusively deemed a liability of the Indemnitor hereunder. The Indemnifying Party Indemnitor shall have the right to participate inin (at its sole cost and expense) or, or subject to Section 8.4(c), by giving written notice to the Indemnified Party, Party within 30 days of having received a Claim Notice that the Indemnitor intends to assume the defense of any such Third-Party Claim, and has acknowledged in writing to the Indemnified Party its unqualified obligation to indemnify the Indemnified Party as provided hereunder, to diligently assume and control the defense of such Third-Party Claim at the Indemnifying Indemnitor’s sole cost and expense, with legal counsel reasonably acceptable to the Indemnified Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defensedefense (at the sole cost and expense of the Indemnitor) (provided, however, that the Indemnified Party shall not be required to bring any counterclaim or cross-complaint against any Person). In the event that the Indemnifying Party Indemnitor assumes the defense of any Third-Party Claim, subject to Section 8.03(b8.4(b), (i) it shall have the 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. The Party and (ii) the Indemnified Party shall have the right 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 PartyIndemnitor’s right to control the defense thereof. The Seller and the Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, provided that including access to the fees Company’s premises and disbursements personnel and the right to examine and copy any accounts, documents or records, (at the sole cost and expense of the Indemnitor, including reasonable out-of-pocket expenses), as may be reasonably requested for the defense and preparation of the defense of such counsel Third-Party Claim; provided, that in no event shall either party be required to produce any documents or information that is protected from discovery by the attorney-client privilege, the doctrine of work product immunity or any other privilege or immunity from production applicable in litigation. If the Indemnitor does not assume the defense of a Third-Party Claim pursuant to this Section 8.4(a), the Indemnified Party shall have the right to defend against the Third-Party Claim (at the sole cost and expense of the Indemnitor, if the Indemnified Party is entitled to indemnification hereunder), with counsel of the Indemnified Party.’s choosing
Appears in 2 contracts
Samples: Securities Purchase Agreement, Securities Purchase Agreement (Asta Funding Inc)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action action, suit, claim or other legal proceeding made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative representative of the foregoing (each, a “Third-Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Third Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Third Party Claim (except to the extent the insurer under the R&W Insurance Policy assumes the defense of such Third Party Claim pursuant to and in accordance with the R&W Insurance Policy) at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Third Party Claim, subject to Section 8.03(b9.06(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right right, at its own cost and expense, to participate in the defense of any Third-Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof. If the Indemnifying Party elects not to compromise or defend such Third Party Claim or fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, provided that the fees Indemnified Party may, subject to Section 9.06(b), pay, compromise, or defend such Third Party Claim and disbursements seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. The Sellers and Purchaser shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available (subject to the provisions of Section 6.02) records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such counsel shall be at the expense of the Indemnified PartyThird Party Claim.
Appears in 2 contracts
Samples: Stock Purchase Agreement (PAE Inc), Stock Purchase Agreement (PAE Inc)
Third Party Claims. (a) If any Indemnified a claim by a Third Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) is made against any Indemnified Party, and if such party intends to seek indemnity with respect thereto under this Section 8.7, such Indemnified Party with respect shall promptly notify the Indemnifying Party of such Third‑Party Claim by delivery of a Claim Certificate; provided, that the failure to which so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Claim Certificate is not delivered to the Indemnifying Party within the relevant survival period set forth in Section 8.1 or the Indemnifying Party is obligated to provide indemnification under this Agreement, actually and materially prejudiced thereby. The Indemnifying Party shall notify the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereofin writing, as promptly as possible (but in any event not later than thirty (30case before the due date for the answer or response to the Third-Party Claim) calendar days after receipt of such notice of such Third-Party Claim. The failure its election to give such prompt written notice shall notassume the conduct and control, however, relieve at the expense of the Indemnifying Party Party, through counsel of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicablechoosing, of the Loss that has been settlement or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party such Third‑Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate with it in good faith in such defenseconnection therewith. In the event that the Indemnifying Party assumes the defense Notwithstanding any other provision of any Third-Party Claimthis Agreement, subject Section 6.7(f) shall govern with respect to Section 8.03(b), it shall have the 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. The Tax Contests.
(b) Any Indemnified Party shall have the right to participate employ separate counsel for the purpose of participating with the Indemnifying Party and its counsel in the defense of such Third‑Party Claim, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (i) the Indemnifying Party is not entitled to, or shall have failed to, assume the defense of such Third‑Party Claim as set forth in Section 8.7(c), (ii) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party or (iii) 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 is a conflict of interest between the Indemnified Party and the Indemnifying Party. The Indemnified Party shall not pay or settle any such Third‑Party Claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such Third‑Party Claim only as to itself; provided, that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such Third‑Party Claim unless the Indemnifying Party shall have consented to such payment or settlement.
(c) Notwithstanding anything in this Section 8.7 to the contrary, the Indemnified Party shall have the right to conduct and control, through counsel of its choosing at the expense of the Indemnifying Party, the defense, compromise and settlement of any Third-Party Claim with counsel selected by it subject (i) that seeks as the sole remedy an injunction or other equitable relief against the Indemnified Party, (ii) that seeks any remedy against the Indemnified Party that does not include the payment of money damages, (iii) to the extent that such claim seeks money damages in an amount that would be reasonably expected to exceed the then remaining limit on the Sellers’ liability under Section 8.4 at the time such claim is submitted by the Indemnified Party or (iv) if the Indemnifying Party’s Party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the Indemnified Party and the Indemnifying Party are reasonably likely to have a conflict of interest. Additionally, if the Indemnifying Party does not notify the Indemnified Party in accordance with Section 8.7(a) that it elects to undertake the defense AMERICAS 92199813 (2K) -45- thereof, the Indemnified Party shall have the right to contest, settle or compromise and otherwise control the defense thereofof the Third‑Party Claim through counsel of its choosing but shall not thereby waive any right to indemnity therefor pursuant to this Agreement.
(d) The Indemnifying Party shall not, provided that except with the fees and disbursements of such counsel shall be at the expense prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to any judgment that (i) is not entirely indemnifiable by the Indemnifying Party pursuant to this Article VIII, (ii) does not include as an unconditional term thereof the giving by the Person or Persons asserting such Third‑Party Claim to all Indemnified Parties of an unconditional release from all Liability with respect to such Third‑Party Claim, (iii) includes any statement as to or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnified Party, or (iv) involves any injunctive relief against the Indemnified Party that would be reasonably expected to materially and adversely affect the Indemnified Party.
(e) The Indemnified Party shall cooperate with the Indemnifying Party and its counsel in all reasonable respects in connection with the defense of any Third‑Party Claim, including making available records relating to such 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 Third‑Party Claim or for testimony as witnesses in any proceeding relating to such Third‑Party Claim.
(f) The procedures in this Section 8.7 shall not apply to direct claims of the Seller Indemnitees or the Purchaser Indemnitees, which shall be governed by Section 8.6.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Iconix Brand Group, Inc.)
Third Party Claims. (a) If any Indemnified Party Indemnitee receives notice of the assertion of any claim or of the commencement of any Action made action or brought proceeding by any Person who person that is not a party to this Agreement or an Affiliate a subsidiary of a any such party to this Agreement or a Representative of the foregoing against such Indemnitee (a “"Third-Party Claim”"), the Indemnitee shall promptly provide written notice thereof (including a description of the Third-Party Claim and an estimate of any Indemnifiable Losses, which estimate shall not be conclusive as to the final amount of such Indemnifiable Losses) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, within twenty (20) Business Days after the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after Indemnitee's receipt of such notice of such Third-Party Claim. The failure to give Any delay by the Indemnitee in providing such prompt written notice shall not, however, not relieve the Indemnifying Party of its any liability for indemnification obligations, hereunder except and only to the extent that the rights of the Indemnifying Party forfeits rights or defenses are materially prejudiced by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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. delay.
(b) The Indemnifying Party shall have the right to participate inin or, or by giving written notice to the Indemnified PartyIndemnitee, to assume the defense of any Third-Party Claim at the such Indemnifying Party’s 's expense and by the such Indemnifying Party’s 's own counselcounsel (which shall be reasonably satisfactory to the Indemnitee), and the Indemnified Party shall Indemnitee will cooperate in good faith in such defense. In The Indemnifying Party shall not be liable for any legal expenses incurred by the event Indemnitee after the Indemnitee has received notice of the Indemnifying Party's intent to assume the defense of a Third-Party Claim; provided, however, that if, under applicable standards of professional conduct a conflict on any significant issue between the Indemnifying Party assumes the defense and any Indemnified Party exists in respect of any such Third-Party Claim, subject then the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of one additional counsel (who shall be reasonably acceptable to Section 8.03(bthe Indemnifying Party); provided, it shall have further, that if the right Indemnifying Party fails to take such action as it deems steps reasonably necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any diligently pursue the defense of such Third-Party Claim in within twenty (20) Business Days of receipt of notice from the name Indemnitee that such steps are not being taken, the Indemnitee may assume its own defense and on behalf of the Indemnified Party. The Indemnified Indemnifying Party shall have be liable for the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense reasonable costs thereof, provided that the fees and disbursements of such counsel shall be at the expense of the Indemnified Party.
Appears in 2 contracts
Samples: Indemnification Agreement (Williams Communications Group Inc), Indemnification Agreement (Williams Communications Group Inc)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action action, suit, claim or other legal proceeding made or brought by any Person person or entity who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Third Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Third Party Claim, subject to Section 8.03(b6.05(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right right, at its own cost and expense, to participate in the defense of any Third-Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof. If the Indemnifying Party elects not to compromise or defend such Third Party Claim or fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, provided that the fees Indemnified Party may, subject to Section 6.05(b), pay, compromise, defend such Third Party Claim and disbursements seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such counsel shall be at the expense of the Indemnified PartyThird Party Claim.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Famous Daves of America Inc), Asset Purchase Agreement (Famous Daves of America Inc)
Third Party Claims. (a) If any Indemnified Party receives an Indemnitee shall receive notice or otherwise learn of the assertion by a Person (including any Governmental Authority) that is not a New NGC Entity or a HII Entity of any claim (including environmental claims and demands or requests for investigation or remediation of contamination) or of the commencement by any such Person of any Action made or brought by any Person who is not a party with respect to which an Indemnifying Party may be obligated to provide indemnification to such Indemnitee pursuant to this Agreement or an Affiliate of a party to this any Ancillary Agreement or a Representative of the foregoing (collectively, a “Third-Party Claim”) against ), such Indemnified Party with respect to which the Indemnitee shall give such Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereofthereof as soon as promptly practicable, but in any event not no later than thirty (30) calendar 20 days after receipt of such notice becoming aware of such Third-Party Claim. The failure to give Any such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detaildetail and contain written correspondence received from the third party that relates to the Third-Party Claim. Notwithstanding the foregoing, the failure of any Indemnitee to give notice as provided in this Section 5.5(a) shall include copies not relieve the related Indemnifying Party of all material written evidence thereof and shall indicate its obligations under this Article V, except to the estimated amount, if reasonably practicable, of the Loss extent that has been such Indemnifying Party is prejudiced by such failure to give notice.
(b) With respect to any Third-Party Claim that is or may be sustained a Shared Liability:
(i) If the Indemnifying Party receiving any notice pursuant to Section 5.5(a) or the Indemnitee believes that the Third-Party Claim is or may be a Shared Liability, such Indemnifying Party or Indemnitee may make a Determination Request within 30 days after the notice given by the Indemnified Indemnitee to the Indemnifying Party pursuant to Section 5.5(a). Upon the making of a Determination Request, the applicable Indemnitee shall assume the defense of such Third-Party Claim until a determination as to whether such Third-Party Claim is a Shared Liability. In the event of such assumption of defense, such Indemnitee shall be entitled to reimbursement of all the costs and expenses of such defense once a final determination or acknowledgement is made that such Indemnitee is entitled to indemnification with respect to such Third-Party Claim; provided, that if such Third-Party Claim is determined to be a Shared Liability, such costs and expenses shall be shared as provided in Section 5.5(b)(ii). If it is determined by New NGC and HII or by the Allocation Committee that the Third-Party Claim is a Shared Liability, the Managing Party (as determined in accordance with Section 6.1(a)) shall assume the defense of such Third-Party Claim as soon as reasonably practicable following such determination.
(ii) A party’s costs and expenses of assuming the defense of (subject to Section 5.5(b)(i)), and/or seeking to settle or compromise (subject to Section 5.5(b)(iv)), any Third-Party Claim that is a Shared Liability shall be included in the calculation of the amount of the applicable Shared Liability in determining the obligations of the parties with respect thereto pursuant to Section 6.4.
(iii) The Managing Party shall consult with the Non-Managing Party prior to taking any action with respect to any Third-Party Claim that is a Shared Liability if the Managing Party’s action could reasonably be expected to have a significant adverse impact (financial or non-financial) on the Non-Managing Party, including a significant adverse impact on the rights, obligations, operations, standing or reputation of the Non-Managing Party (or its Subsidiaries or Affiliates), and the Managing Party shall not take such action without the prior written consent of the Non-Managing Party, which consent shall not be unreasonably withheld or delayed.
(iv) The Managing Party shall promptly give notice to the Non-Managing Party regarding the substance of any settlement related discussions with respect to any Third-Party Claim that is a Shared Liability if (A) the Non-Managing Party is required to share in any significant aspect of the costs and expenses, proceeds or obligations resulting from such settlement or (B) the settlement can reasonably be expected to have a significant impact (financial or nonfinancial) on the Non-Managing Party. The In such instances, the Managing Party shall not settle such Third-Party Claim without the prior written consent of the Non-Managing Party, which consent shall not be unreasonably withheld or delayed.
(c) With respect to any Third-Party Claim that is not a Shared Liability:
(i) Unless the parties otherwise agree, within 30 days after the receipt of notice from an Indemnitee in accordance with Section 5.5(a), an Indemnifying Party shall defend (and, unless the Indemnifying Party has specified any reservations or exceptions, seek to settle or compromise), at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, any Third-Party Claim that is not a Shared Liability. The applicable Indemnitee shall have the right to employ separate counsel and to participate inin (but not control) the defense, compromise, or settlement thereof, but the fees and expenses of such counsel shall be the expense of such Indemnitee. Notwithstanding the foregoing, the Indemnifying Party shall be liable for the fees and expenses of counsel employed by giving written the Indemnitee (A) for any period during which the Indemnifying Party has not assumed the defense of such Third-Party Claim (other than during any period in which the Indemnitee shall have failed to give notice of the Third-Party Claim in accordance with Section 5.5(a)) or (B) to the Indemnified Partyextent that such engagement of counsel is as a result of a conflict of interest, as reasonably determined by the Indemnitee acting in good faith.
(ii) No Indemnifying Party shall consent to assume the defense entry of any judgment or enter into any settlement of any Third-Party Claim at that is not a Shared Liability without the consent of the applicable Indemnitee; provided, however, that such Indemnitee shall be required to consent to such entry of judgment or to such settlement that the Indemnifying Party’s expense and by Party may recommend if the judgment or settlement (A) contains no finding or admission of any violation of Law or any violation of the rights of any Person, (B) involves only monetary relief which the Indemnifying Party’s own counselParty has agreed to pay and could not reasonably be expected to have a significant adverse impact (financial or non-financial) on the Indemnitee, including a significant adverse impact on the rights, obligations, operations, standing or reputation of the Indemnitee (or any of its Subsidiaries or Affiliates), and (C) includes a full and unconditional release of the Indemnified Party Indemnitee. Notwithstanding the foregoing, in no event shall cooperate in good faith in such defense. In an Indemnitee be required to consent to any entry of judgment or settlement if the event that effect thereof is to permit any injunction, declaratory judgment, other order or other nonmonetary relief to be entered, directly or indirectly, against any Indemnitee.
(d) Whether or not the Indemnifying Party assumes the defense of any a Third-Party Claim, subject to Section 8.03(b)no Indemnitee shall admit any liability with respect to, it shall have the right to take such action as it deems necessary to avoidor settle, disputecompromise or discharge, defend, appeal or make counterclaims pertaining to any such Third-Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to without the Indemnifying Party’s right prior written consent, which consent shall not be unreasonably withheld or delayed.
(e) Notwithstanding anything to control the defense contrary in this Section 5.5 or in Article VI, the additional provisions of the Litigation Management Agreement shall govern with respect to all Third-Party Claims (including Shared Actions and Assigned Actions, as defined in the Litigation Management Agreement) specifically set forth therein or covered by the terms thereof, provided that and the fees Litigation Management Agreement shall control over any inconsistent provisions of this Section 5.5 and disbursements of Article VI as to such counsel shall be at the expense of the Indemnified PartyThird-Party Claims.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Huntington Ingalls Industries, Inc.), Separation and Distribution Agreement (Huntington Ingalls Industries, Inc.)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) 15 calendar days after receipt of such notice of such Third-Third Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failurehas been prejudiced thereby. Such notice by the Indemnified Party shall describe the Third-Third Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense; provided, that if the Indemnifying Party is Seller, such Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim that (x) is asserted directly by or on behalf of a Person that is a supplier or customer of the Business, or (y) seeks an injunction or other equitable relief against the Indemnified Party. In the event that the Indemnifying Party assumes the defense of any Third-Third Party Claim, subject to Section 8.03(b8.05(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third-Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the . The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. 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, subject to Section 8.05(b), 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. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available (subject to the provisions of Section 6.06) records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.
Appears in 2 contracts
Samples: Asset Purchase Agreement (VOXX International Corp), Asset Purchase Agreement (VOXX International Corp)
Third Party Claims. (i) If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party Party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Significant Owners or the Owners, on one hand, or Acquirer and the Target Company, on the other hand (as applicable, the “Indemnifying Party”; provided, however, that if the Significant Owners are required to provide indemnification, Owners’ Representative shall be the Indemnifying Party is for the purposes of actions to be taken pursuant to this Section 9.2) are obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Owners’ Representative (on behalf of such Indemnifying Party reasonably Party) or Acquirer, as applicable, prompt written notice thereof, but in any event not later than thirty thereof (30) calendar days after receipt of such notice of such a “Third-Party ClaimClaim Notice”). The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses Party’s defense of such claim is materially and adversely prejudiced by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence thereof detail (to the extent then known) and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Parties shall reasonably cooperate with each other in good faith in connection with the defense of any Third-Party Claim.
(ii) The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified PartyParty within thirty days after receipt of a Third-Party Claim Notice (which written notice by the Indemnifying Party shall include an irrevocable acknowledgement of the Indemnifying Party that the Indemnified Party will be fully indemnified by the Indemnifying Party in respect of such Third-Party Claim), to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense sole cost and by expense, including the engagement of the Indemnifying Party’s own counsel. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense (and the Indemnified Party shall cooperate be entitled to have sole control over the defense) of a Third-Party Claim if: (A) such Third-Party Claim involves criminal allegations; (B) such Third-Party Claim demands injunctive or other equitable relief; (C) the Indemnified Party reasonably determines that it would be inappropriate for a single counsel to represent both the Indemnifying Party and the Indemnified Party in good faith connection with such Third-Party Claim under applicable standards of legal ethics; (D) there are legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party; (E) such Third-Party Claim is made by or otherwise involves any of the Target Company’s material business relations (including any of its customers or suppliers, including (for the avoidance of doubt) manufacturers and their respective Affiliates); or (F) in the event such defense. claim were to be decided adversely, the aggregate amount of Losses associated therewith, together with all other outstanding claims for indemnification hereunder, would reasonably be expected to exceed the aggregate liability limitations set forth in this Article 9.
(iii) In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b), it the Indemnifying Party shall have the 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. The Indemnifying Party shall keep the Indemnified Party apprised of the status of any matter the defense of which they are maintaining, including settlement offers, with respect to the Third-Party Claim and permit the Indemnified Party to participate in the defense of the Third-Party Claim. The Indemnified Party shall have the right 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 control the defense thereof. If the Indemnifying Party elects not to compromise or defend such Third-Party Claim or fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, the Indemnified Party may pay, compromise, and defend such Third-Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third-Party Claim.
(iv) Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not enter into settlement of any Third-Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), except as provided in this Section 9.2(a)(iv). If (1) a firm offer is made to settle a Third-Party Claim that (A) only involves the fees payment of monetary damages that are paid in full by the Indemnifying Party and disbursements does not include any liability or the creation of such counsel shall be at a financial or other obligation on the expense part of the Indemnified Party, (B) provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third-Party Claim, (C) does not involve any statement, finding or admission of any fault of, breach of contract by, or violation of Law by, the Indemnified Party; (D) includes a reasonable confidentiality obligation by the third party claimant of the terms of the settlement in any settlement agreement; and (E) provides that the Indemnified Party is an express third party beneficiary of the settlement agreement, entitled to enforce such settlement agreement, and (2) the Indemnifying Party desires to accept and agree to such offer, 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 ten 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, the Indemnifying Party may settle the Third-Party Claim upon the terms set forth in such firm offer to settle such Third-Party Claim.
Appears in 2 contracts
Samples: Merger Agreement (Isoray, Inc.), Merger Agreement (Isoray, Inc.)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action action, suit, claim or other legal proceeding made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(bSection 7.05(b), it shall have the 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. The Indemnified Party shall have the right 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 control the defense thereof. If the Indemnifying Party elects not to compromise or defend such Third-Party Claim or fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, provided that the fees Indemnified Party may, subject to Section 7.05(b), pay, compromise, defend such Third-Party Claim and disbursements seek indemnification for any and all Losses based upon, arising from or relating to such Third-Party Claim. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available (subject to the provisions of Section 5.04) records relating to such Third-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such counsel shall be at the expense of the Indemnified PartyThird-Party Claim.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Ability Inc.), Stock Purchase Agreement (Ability Inc.)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement The obligations and liabilities of any Action made or brought by any Person who is not a party of ------------------ the parties to this Agreement or an Affiliate of a party under Section 9.2 hereof with respect to this Agreement or a Representative of all items indemnified against in Section 9.2 hereof and which are initiated by third parties (the foregoing (a “"Third-Party Claim”Claims") against such Indemnified Party with respect shall be subject to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt following terms and conditions:
(a) Upon receipt of written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at asserted against, resulting to, imposed upon or incurred by any member of the Buyer Group or the Seller Group, as the case may be (the "Indemnified Party"), the party receiving such written notice (the "Indemnifying Party") will undertake the defense thereof by counsel of its own choosing, which counsel shall be reasonably satisfactory to the Indemnified Party, provided that if in -------- the Indemnified Party's reasonable judgment a conflict of interest may exist between such Indemnified Party and the Indemnifying Party’s expense and by the Indemnifying Party’s Party with respect to such Third-Party Claim, such Indemnified Party shall be entitled to select counsel of its own counselchoosing, and in which event the Indemnified Party shall cooperate in good faith in be obligated to pay the fees and expenses of such defense. In the event that the Indemnifying Party assumes the defense counsel.
(b) If within a reasonable time after written notice of any Third-Party Claim, subject the Indemnifying Party fails to Section 8.03(b), it shall have defend the right to take Indemnified Party against whom such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third- Party Claim in has been asserted, the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate undertake the defense, compromise or settlement of such Third-Party Claim on behalf of and for the account and at the risk of the Indemnifying Party.
(c) Anything in this Section 9.3 to the contrary notwithstanding, (I) if there is a reasonable probability in the defense Indemnified Party's judgment that a claim may materially and adversely affect the Indemnified Party or any of its Affiliates, directors, officers, shareholders or employees against whom a Third-Party Claim is asserted other than as a result of money damages or other money payments, the person against whom such Third-Party Claim is asserted shall have the right to defend, co-defend, compromise or settle such Third-Party Claim and (ii) the prior written consent of such person against whom such Third-Party Claim is asserted, shall be required in connection with the settlement or compromise of any claim or the entry of any judgment relating to any such Third-Party Claim, only if such settlement, compromise or judgment does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such person against whom such Third-Party Claim is asserted, of a release from all liabilities in respect of such Third-Party Claim.
(d) The Indemnifying Party shall provide the Indemnified Party or any of its Affiliates, directors, officers, shareholders or employees against whom a Third-Party Claim is asserted with access to all records and documents of the Indemnified Party relating to any Third-Party Claim with counsel selected by it subject to Claim. The Indemnified Party will provide the Indemnifying Party’s right Party with access to control the defense thereof, provided that the fees all records and disbursements of such counsel shall be at the expense documents of the Indemnified Partyparty relating to any Third-Party Claim.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Careside Inc), Asset Purchase Agreement (Careside Inc)
Third Party Claims. If any Indemnified The obligations and liabilities of an Indemnifying Party receives notice of with respect to Losses resulting from the assertion or commencement of any Action made or brought liability by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing third parties (each, a “Third-Third Party Claim”) shall be subject to the following terms and conditions:
(i) The Indemnified Parties shall promptly give written notice to the Indemnifying Parties of the receipt of any written claim or demand asserted against or sought to be collected from any Indemnified Party by a third party, including the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third Party Claim), and a reference to the provision of this Agreement upon which such claim is based; provided, that the failure of such Indemnified Party with respect to which the give an Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party notice as provided herein shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, obligations hereunder except and only to the extent that such failure prejudices the defense or other rights available to the Indemnifying Party forfeits rights or defenses by reason of with respect to such failureThird Party Claim. Such notice shall be accompanied by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all material reasonably relevant documentation with respect to such Third Party Claim, including any summons, complaint or other pleading which may have been served, any written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been demand or may be sustained by the Indemnified Partyany other document or instrument. The Indemnifying Parties shall have twenty (20) days (the “Notice Period”) after receipt of written notice of a Third Party Claim to notify the Indemnified Parties that it desires to defend the Indemnified Parties against such Third Party Claim.
(ii) In the event that the Indemnifying Parties notify the Indemnified Parties within the Notice Period that they desire to defend the Indemnified Parties against the Third Party Claim, the Indemnifying Parties shall have the right to participate indefend the Indemnified Parties by appropriate proceedings, or by giving written notice and shall assume and control such defense, at their own expense, provided that counsel for the Indemnifying Parties who shall conduct the defense of such claim shall be reasonably satisfactory to the Indemnified PartyParties. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Parties shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing, at the Indemnified Parties’ sole expense, subject to the Indemnifying Parties’ right to direct and control the defense. The Indemnified Parties shall participate in any such defense at their expense unless (i) the Indemnifying Parties and the Indemnified Parties are both named parties to the proceedings and the Indemnified Parties shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to an actual conflict of interests between them, (ii) the Indemnified Parties shall in good faith determine that the Indemnified Parties may have available to them one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Parties in respect of a Third Party Claim or any proceeding relating thereto, as provided in the first sentence of Section 10.03(b)(iii), (iii) the Indemnified Parties assume the defense of any Third-a Third Party Claim at after the Indemnifying Parties have failed to diligently pursue a Third Party Claim they have assumed, as provided in the first sentence of Section 10.03(b)(iv), (iv) the claim relates to or arises in connection with any criminal proceeding, indictment or allegation; or (v) the Indemnified Party reasonably believes an adverse determination with respect to the proceeding or other claim giving rise to such claim for indemnification would be materially detrimental to or materially injure the Indemnified Party’s expense reputation or future business prospects, in any of which case the costs and expenses of such defense shall be for the account of the Indemnifying Parties,. The Indemnifying Parties shall have the right to consent to entry of any judgment, settle, compromise or offer to settle or compromise any Third Party Claim; provided, that such Indemnifying Parties shall not, without the prior written consent of the Indemnified Parties (such consent not to be unreasonably withheld, conditioned or delayed), consent to entry of any judgment, settle, compromise or offer to settle or compromise any Third Party Claim on a basis that would result in (w) the imposition of a consent order, injunction or decree that would restrict or mandate the future activity or conduct of the Indemnified Parties or any of their Affiliates, (x) a finding or admission of a violation of applicable Law by the Indemnified Parties or any of their Affiliates, (y) any monetary liability of the Indemnified Parties that will not be promptly paid or reimbursed by the Indemnifying Party’s own counselParty or (z) the absence of a full, unconditional and irrevocable release by such third party of each of the Indemnified Party Parties and their Affiliates.
(iii) Notwithstanding anything to the contrary in Section 10.03(b)(ii), in the event that the Indemnified Parties shall cooperate in good faith determine that the Indemnified Parties may have available to them one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Parties in respect of a Third Party Claim or any Proceeding relating thereto, the Indemnified Parties shall have the right, as applicable, at the sole cost of the Indemnifying Party (provided, that the Indemnifying Party will not be required to pay for the fees and expenses of more than one counsel for all Indemnified Parties in connection with any such defenseThird Party Claim and related proceedings), at all times to take over and assume control over the defense and prosecution of such portion of such Third Party Claim and related proceedings related to such inconsistent defenses and counterclaims; provided, that the Indemnifying Parties shall not be prejudiced by the Indemnified Parties’ defense of such portion of such Third Party Claim. In the event that the Indemnifying Indemnified Party assumes does not assume the defense of any Third-Party Claimmatter as provided in the preceding subclause, subject to Section 8.03(b), it the Indemnifying Parties shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to control the defense against any such Third-Third Party Claim in or related proceeding; provided, that (A) subject to the name and on behalf control of the prosecution and defense of such Third Party Claim by the Indemnifying Parties and their counsel, the Indemnified Party. The Indemnified Parties and their counsel shall be kept informed as to all material aspects of such Third Party Claim and related proceedings and shall have the right to participate in the prosecution and defense of such Third Party Claim and (B) the Indemnifying Parties and their counsel shall promptly provide to the Indemnified Parties and their counsel all material information related to such Third Party Claim and related Proceedings (including copies of written information) and (C) the Indemnified Parties and their counsel shall have their views regarding such Third Party Claim considered in good faith by the Indemnifying Parties and their counsel.
(iv) If the Indemnifying Parties elect not to defend the Indemnified Parties against a Third Party Claim, whether by not giving the Indemnified Parties timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right, but not the obligation, to assume its own defense at the Indemnifying Parties’ cost and expense. The Indemnified Parties shall not settle a Third Party Claim requiring payment of any amounts without the consent of the Indemnifying Parties unless they agree to waive their rights against the Indemnifying Party with respect to that portion of indemnification related to such settled Third Party Claim pursuant hereto.
(v) Subject to Section 10.03(b)(iii) and Section 10.03(b)(iv), in the event that an Indemnified Party determines in good faith that any Third Party Claim or any proceeding related thereto has impaired, or would reasonably be expected to impair, the commercial interests or business reputation of the Indemnified Party or its Affiliates, then, at the Indemnified Parties’ sole expense, (1) subject to the control of the prosecution and defense of such Third Party Claim by the Indemnifying Parties and their counsel, the Indemnified Parties and their counsel (which shall be reasonably satisfactory to the Indemnifying Parties) shall be kept informed as to all material aspects of such Third Party Claim and related proceedings and shall have the right to participate in the prosecution and defense of such Third Party Claim, (2) the Indemnifying Parties and their counsel shall promptly provide to the Indemnified Parties and their counsel all material information related to such Third Party Claim and related proceedings (including copies of written information) reasonably requested by the Indemnified Parties, and (3) the Indemnified Parties and their counsel shall afford the Indemnifying Party and its counsel a reasonable opportunity to present their views on such claims and proceedings.
(vi) The Indemnified Parties and the Indemnifying Parties shall cooperate in order to ensure the proper and adequate defense of a Third Party Claim, including by (i) cooperating in the investigation, pre-trial activities, trial, compromise, settlement, discharge and defense of any Third-Third Party Claim with counsel selected by it subject to this Section 10.03(b) and (ii) providing reasonable access to each other’s relevant business records and other documents and employees.
(vii) The Indemnified Parties and the Indemnifying Party’s right Parties shall use commercially reasonable efforts (which shall not require the expenditure of money, the curbing of any business activities or the commencement of litigation) to control the defense thereofavoid production of confidential information (consistent with applicable Law) and to cause all communications among employees, provided that the fees counsel and disbursements of such counsel shall others representing any party to a Third Party Claim to be at the expense of the Indemnified Partymade so as to preserve any applicable attorney-client or work-product privileges.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Fleetcor Technologies Inc)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b9.04(b), it shall have the 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. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the . The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. 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, subject to Section 9.04(b), 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. The Parties shall cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available records relating to such Third-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending Party, management employees of the non-defending Party as may be reasonably necessary for the preparation of the defense of such Third-Party Claim.
Appears in 2 contracts
Samples: Merger Agreement (Sollensys Corp.), Merger Agreement (Sollensys Corp.)
Third Party Claims. If any a party entitled to be indemnified under this ARTICLE VIII (an "Indemnified Party Party") receives notice of the assertion or commencement of any Action action, suit, claim or other legal proceeding or Matter made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing Third Party (a “Third-"Third Party Claim”") against such Indemnified Party with respect to which the Indemnifying Indemnified Party is obligated wishes to provide assert an indemnification claim against the party or parties subject to such indemnification obligation under this AgreementARTICLE VIII (the "Indemnifying Party"), the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty thereof (30) calendar days after receipt of such notice of such Third-Party Claim"Claim Notice"). The failure to give promptly provide such prompt written notice a Claim Notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party A Claim Notice shall describe the Third-Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss Damages that has have been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Third Party Claim at the Indemnifying Party’s 's expense and by the Indemnifying Party’s 's own counselcounsel (as reasonably acceptable to the Indemnified Party), and the Indemnified Party shall use commercially reasonable efforts to cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Third Party Claim, subject to Section 8.03(b8.5(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right right, at its own cost and expense, to participate in the defense of any Third-Third Party Claim with counsel selected by it subject to the Indemnifying Party’s 's right to control the defense thereof, provided that . If the fees and disbursements of Indemnifying Party elects not to compromise or defend such counsel shall be at the expense of Third Party Claim or fails to promptly notify the Indemnified PartyParty in writing of its election to defend as provided in this Agreement, the Indemnified Party may, subject to Section 8.5(b) pay, compromise, defend such Third Party Claim and seek indemnification for any and all Damages based upon, arising from or relating to such Third Party Claim. The Company, Stockholders, Parent, and the Surviving Entity shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim.
Appears in 2 contracts
Samples: Merger Agreement (Bendele Phillip), Merger Agreement (Inotiv, Inc.)
Third Party Claims. If (a) In the event that any Indemnified Party asserts a claim for indemnification or receives notice of the assertion of any claim or of the commencement of any Action made action or brought proceeding by any Person who is not a party to this Agreement or an Affiliate affiliate of a party to this Agreement or a Representative in respect of the foregoing (a “Third-Party Claim”) against which such Indemnified Party with respect is entitled to which the indemnification by an Indemnifying Party is obligated to provide indemnification under this AgreementAgreement (a "Third Party Claim"), the Indemnified Party shall give written notice to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30the "Third Party Claims Notice") calendar within 20 days after receipt asserting or learning of such notice Third Party Claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim), together with a statement specifying the basis of such Third-Third Party Claim. The failure to give such prompt written notice Third Party Claim Notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall (i) describe the Third-Party Claim claim in reasonable detail, shall include copies of all material written evidence thereof and shall (ii) indicate the estimated amountamount (estimated, if reasonably practicablenecessary, and to the extent feasible) of the Loss Losses that has have been or may be sustained suffered by the Indemnified Party. The Indemnifying Party must provide written notice to the Indemnified Party that it is either (i) assuming responsibility for the Third Party Claim or (ii) disputing the claim for indemnification against it (the "Indemnification Notice") The Indemnification Notice must be provided by the Indemnifying Party to the Indemnified Party within 15 days after receipt of the Third Party Claims Notice or within such shorter time as may be necessary to give the Indemnified Party a reasonable opportunity to respond to such Third Party Claim (the "Indemnification Notice Period").
(b) If the Indemnifying Party provides an Indemnification Notice to the Indemnified Party within the Indemnification Notice Period that it assumes responsibility for the Third Party Claim (the "Defense Notice"), the Indemnifying Party shall conduct at its expense the defense against such Third Party Claim in its own name, or if necessary in the name of the Indemnified Party. The Defense Notice shall specify the counsel the Indemnifying Party will appoint to defend such claim ("Defense Counsel"); provided, however, that the Indemnified Party shall have the right to participate inapprove the Defense Counsel, which approval shall not be unreasonably withheld or by giving written notice delayed, except that such approval may be withheld if the defense is to be in the name of the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes fails to give the defense of any Third-Indemnification Notice within the Indemnification Notice Period, the Indemnified Party Claim, subject to Section 8.03(b), it shall have the right to take conduct the defense and to compromise and settle such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third Party Claim without the prior consent of the Indemnifying Party and subject to the provisions of Section 7.6.1, the Indemnifying Party will be liable for all costs, expenses, settlement amounts or other Losses paid or incurred in connection therewith.
(c) In the event that the Indemnifying Party provides in the name Indemnification Notice that it disputes the claim for indemnification against it, the Indemnified Party shall have the right to conduct the defense and on behalf to compromise and settle such Third Party Claim, without the prior consent of the Indemnifying Party. Once such dispute has been finally resolved in favor of indemnification by a court or other tribunal of competent jurisdiction or by mutual agreement of the Indemnified Party and Indemnifying Party, subject to the provisions of Section 7.6.1, the Indemnifying Party shall within 10 days of the date of such resolution or agreement, pay to the Indemnified Party all Losses paid or incurred by the Indemnified Party in connection therewith.
(d) In the event that the Indemnifying Party delivers an Indemnification Notice pursuant to which it elects to conduct the defense of the Third Party Claim, the Indemnifying Party shall be entitled to have the exclusive control over the defense of the Third Party Claim and the Indemnified Party will cooperate in good faith with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party. The Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. The Indemnifying Party will not settle the Third Party Claim or cease to defend against any Third Party Claim as to which it has delivered an Indemnification Notice (as to which it has assumed responsibility for the Third Party Claim), without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed; provided, however, such consent may be withheld if, among other reasons, as a result of such settlement or cessation of defense, (i) injunctive relief or specific performance would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder.
(e) If an Indemnified Party refuses to consent to a bona fide offer of settlement which the Indemnifying Party wishes to accept, which provides for a full release of the Indemnified Party and its affiliates relating to the Third Party Claims underlying the offer of settlement and solely for a monetary payment, the Indemnified Party may continue to pursue such matter, free of any Third-Party Claim with counsel selected participation by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall be at the sole expense of the Indemnified Party. In such an event, the obligation of the Indemnifying Party shall be limited to the amount of the offer of settlement which the Indemnified Party refused to accept plus the reasonable costs and expenses of the Indemnified Party incurred prior to the date the Indemnifying Party notified the Indemnified Party of the offer of settlement.
(f) Notwithstanding clause (d) above, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of (x) that part of any Third Party Claim that (i) seeks a temporary restraining order, a preliminary or permanent injunction or specific performance against the Indemnified Party, (ii) involves criminal allegations against the Indemnified Party or (iii) may lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder and (y) the entire Third Party Claim if such Third Party Claim would impose liability on the part of the Indemnified Party in an amount which is greater than the amount as to which the Indemnified Party is entitled to indemnification under this Agreement.
(g) A failure by an Indemnified Party to give timely, complete or accurate notice as provided in this Section 7.4 will not affect the rights or obligations of any party hereunder except and only to the extent that, as a result of such failure, any party entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise directly and materially damaged as a result of such failure to give timely notice.
Appears in 2 contracts
Samples: Limited Partnership Unit Purchase Agreement (MDC Partners Inc), Limited Partnership Unit Purchase Agreement (MDC Partners Inc)
Third Party Claims. If If, prior to the expiration of the applicable survival period set forth in Section 8.01, any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Indemnified Party is obligated to provide seeking indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) 30 calendar days after receipt of such notice of such Third-Third Party ClaimClaim (it being understood that any notice of the assertion or commencement of a Third Party Claim delivered by an Indemnified Party to an Indemnifying Party after the expiration of the applicable survival period set forth in Section 8.01 shall be barred from indemnity under this Agreement). The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party receives notice of the Third Party Claim after the expiration of the applicable survival period set forth in Section 8.01 or the Indemnifying Party forfeits rights or defenses or is otherwise materially prejudiced by reason of such failure, and the Indemnifying Party’s indemnification obligation with respect to any Third Party Claim for which the Indemnifying Party is not so relieved shall survive until the final resolution of such Third Party Claim. Such notice by the Indemnified Party shall describe the Third-Third Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counselcounsel that is reasonably satisfactory to the Indemnified Party, and the Indemnified Party shall cooperate in good faith in such defense; provided, that if the Indemnifying Party is any Seller, such Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim that seeks an injunction or other equitable relief against the Indemnified Party. In the event that the Indemnifying Party assumes the defense of any Third-Third Party Claim, subject to Section 8.03(b8.05(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third-Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the . The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Parties shall be liable for the reasonable fees and expenses of one counsel to all Indemnified Parties in respect of each Third Party Claim for which indemnification is sought hereunder in each jurisdiction for which the Indemnified Party determines counsel is required. 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, subject to Section 8.05(b), 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. Sellers and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available (subject to the provisions of Section 5.01) records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.
Appears in 2 contracts
Samples: Securities and Asset Purchase Agreement (Easylink Services International Corp), Securities and Asset Purchase Agreement (Premiere Global Services, Inc.)
Third Party Claims. If any Indemnified Party receives notice The obligations and liabilities of the assertion or commencement of any Action made or brought by any Person who is not a each party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this AgreementSection 11 hereof related to third party claims shall be subject to the following terms and conditions:
a. At any time after receipt of notice of any third party claim asserted against, imposed upon or incurred by an Indemnified Party, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve notify the Indemnifying Party of its indemnification obligations, except and only to the extent that such claim in writing. The Indemnified Party hereby appoints the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by and the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right be entitled, at its own expenses, to participate in, or by giving written notice to the Indemnified Party, to assume in and shall undertake the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate thereof in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b), it shall have the 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 for and on behalf of the Indemnified Party by counsel of the Indemnifying Party. The ’s own choosing, which counsel shall be satisfactory to the Indemnified Party; provided, however, that in addition, the Indemnified Party shall at all times have the right option, at its own expense, to participate in fully therein (without controlling such action).
b. If within thirty (30) days after written notice to the Indemnified Party of the Indemnifying Party’s intention to undertake the defense of any Third-third party claim the Indemnifying Party Claim with counsel selected by it subject shall fail to defend the Indemnified Party against such third party claim, the Indemnified Party will have the right (but not the obligation) to undertake the defense and/or enter into a compromise or settlement of such third party claim on behalf of, and for the account and at the risk of, the Indemnifying Party’s right .
c. If the Indemnifying Party disputes the claim, the Indemnified Party, without prejudice to control its rights to seek recovery of the defense thereofclaim against the Indemnifying Party, shall be entitled to set-off against the Purchase Price such amount of the claim as is payable by the Indemnified Party pursuant to an order, decree or judgment (interim or final) of a Court or Governmental Authority and if no stay of such order has been obtained by Seller within 30 days thereafter, provided that payment of the fees and disbursements of such counsel Purchase Price shall be at the expense of the Indemnified Partysuspended during such 30 day period.
Appears in 2 contracts
Samples: Business Transfer Agreement, Asset Purchase Agreement
Third Party Claims. If any (i) In the event that the Indemnified Party receives notice or otherwise learns of the assertion or commencement of any Action made or brought by any a Person who is not a party to this Agreement member of either Group of any claim or an Affiliate the commencement of a party to this Agreement any Action (any such claim or a Representative of the foregoing (Action, a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is may be obligated to provide indemnification under this AgreementARTICLE 7, the Indemnified Party shall give written notification to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days of the Third-Party Claim. Such notification shall be given promptly after receipt by the Indemnified Party of such notice of such Third-Party Claim. The failure , shall be accompanied by reasonable supporting documentation submitted by such third party (to give the extent then in the possession of the Indemnified Party) and shall describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such prompt written notice shall notThird-Party Claim and the amount of the claimed Damages (to the extent they can be reasonably estimated by the Indemnified Party based on available information); provided, however, that no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party shall relieve the Indemnifying Party of its indemnification obligations, any Liability or obligation hereunder except and only to the extent that the Indemnifying Party forfeits rights is prejudiced by such delay or defenses deficiency or to the extent the amount of any associated Damages is increased by reason of such failuredelay or deficiency. Such notice by If, and for so long as, (A) the Indemnifying Party notifies the Indemnified Party shall describe as soon as practicable, but in no event later than 30 days, after delivery of such notification that the Indemnifying Party does not dispute the Indemnifying Party’s obligation to indemnify hereunder and desires to defend the Indemnified Party against such Third-Party Claim, and (B) the Third-Party Claim in reasonable detail(I) does not involve criminal liability or any admission of wrongdoing, shall include copies of all (II) does not seek equitable relief or any other material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by non-monetary remedy against the Indemnified Party. The , (III) does not involve a claim which the Indemnified Party reasonably believes would have a material and adverse effect on the Indemnified Party’s business or (IV) is not one in which the Indemnifying Party is also a party and, in the opinion of the Indemnified Party’s outside counsel, joint representation would be inappropriate or there may be legal defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party, then except as hereinafter provided, such Indemnifying Party shall have the right to participate in, or defend against such Third-Party Claim by giving written notice appropriate proceedings with legal counsel reasonably acceptable to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and which proceedings shall be promptly settled or diligently prosecuted by the Indemnifying Party to a final conclusion. During any period in which the Indemnifying Party has not so assumed control of such defense, the Indemnified Party shall control such defense and is hereby authorized (but not obligated) prior to and during such period to file any motion, answer or other pleading and to take any other action which the Indemnified Party shall deem necessary or appropriate to protect the Indemnified Party’s interests.
(ii) The Party not controlling such defense (the “Non-controlling Party”) may participate therein at its own counselexpense; provided, however, that if the Indemnifying Party assumes control of such defense and the Indemnified Party shall cooperate in good faith in such defense. In the event concludes, upon advice of counsel, that the Indemnifying Party assumes and the defense of any Indemnified Party have conflicting interests or different defenses available with respect to such Third-Party Claim, subject the reasonable fees and expenses of one additional counsel to Section 8.03(b)the Indemnified Party shall be considered “Damages” for purposes of this Agreement. The Party controlling such defense (the “Controlling Party”) shall keep the Non-controlling Party reasonably advised of the status of such Third-Party Claim and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. Subject to receiving a confidentiality undertaking from the Controlling Party and any redactions that the Non-controlling Party determines are advisable for purposes of maintaining privilege, it the Non-controlling Party shall have furnish the right to take Controlling Party with such action Information as it deems necessary may have with respect to avoidsuch Third-Party Claim (including copies of any summons, disputecomplaint or other pleading which may have been served on such Party and any written claim, defenddemand, appeal invoice, billing or make counterclaims pertaining other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such Third-Party Claim.
(iii) The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such Third-Party Claim in without the name and on behalf prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that the consent of the Indemnified Party shall not be required if (A) such settlement involves only the payment of monetary damages and the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment, (B) such settlement or judgment includes a full, complete and unconditional release of the Indemnified Party and its Affiliates from further Liability and (C) such settlement involves no admission of wrongdoing by the Indemnified Party or its Affiliates. The Indemnified Party shall have not agree to any settlement of, or the right to participate in the defense entry of any judgment arising from, any such Third-Party Claim with counsel selected by it subject to without the prior written consent of the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel which consent shall not be at the expense of the Indemnified Partyunreasonably withheld, conditioned or delayed.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Viamet Pharmaceuticals Holdings LLC), Separation and Distribution Agreement (Viamet Pharmaceuticals Holdings LLC)
Third Party Claims. If any Indemnified Party Indemnitee receives notice of the assertion or commencement of any Action made or brought by any Person person who is not a party to this Agreement or an Affiliate affiliate of a party to this Agreement or a Representative representative of the foregoing (a “Third-Third Party Claim”) against such Indemnified Party Indemnitee with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party Indemnitee shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Third Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party Indemnitee shall describe the Third-Third Party Claim in reasonable detail, shall include copies of all 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 PartyIndemnitee. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified PartyIndemnitee, to assume the defense of any Third-Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party Indemnitee shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Third Party Claim, subject to Section 8.03(b5.4(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third Party Claim in the name and on behalf of the Indemnified PartyIndemnitee. The Indemnified Party Indemnitee shall have the right to participate in the defense of any Third-Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the . The fees and disbursements of such counsel shall be at the expense of the Indemnified Indemnitee, provided, that if in the reasonable opinion of counsel to the Indemnitee, (i) there are legal defenses available to an Indemnitee that are different from or additional to those available to the Indemnifying Party; (ii) there exists a conflict of interest between the Indemnifying Party and the Indemnitee that cannot be waived, (iii) the claim relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation; or (iv) 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 materially detrimental to or materially injure the Indemnitee’s reputation or future business prospects; the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnitee in each jurisdiction for which the Indemnitee determines counsel is required. If the Indemnifying Party elects not to compromise or defend such Third Party Claim, fails to promptly notify the Indemnitee 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 Indemnitee may, subject to 5.4(b), 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. Seller and Purchaser shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including (subject to reasonable privilege and confidentiality concerns) making available records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Asure Software Inc)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) 30 calendar days after receipt of such notice of such Third-Third Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses or is otherwise prejudiced by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Third Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Third Party Claim at the Indemnifying Party’s sole cost and expense and by the Indemnifying Party’s own counselcounsel (subject to approval by the Indemnified Party which such approval shall not be unreasonably withheld, conditioned or delayed), and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Third Party Claim, subject to Section 8.03(b8.5(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third-Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the . The fees and disbursements of such counsel shall be at the sole cost and expense of the Indemnified Party. 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, subject to Section 8.5(b), 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. Company Parent and Investor shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available (subject to the provisions of Section 5.6) records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out- of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.
Appears in 2 contracts
Samples: Investment Agreement (MedMen Enterprises, Inc.), Investment Agreement
Third Party Claims. (i) If any party (the “Indemnified Party Party”) receives written notice (or otherwise becomes aware) of the assertion or commencement of any Action made Proceeding or brought the assertion of any claim by a third party or the imposition of any Person who is not a party penalty or assessment (in each case other than any claims, penalties, assessments or other proceedings with respect to this Agreement Taxes, which for the avoidance of doubt shall be governed by Section 10.04) for which indemnity may be sought under Section 9.01 or an Affiliate of a party to this Agreement or a Representative of the foregoing Section 9.02 (a “Third-Third Party Claim”) against ), and such Indemnified Party with respect intends to which the Indemnifying Party is obligated seek indemnity pursuant to provide indemnification under this AgreementArticle IX, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, promptly (but in any event not no later than thirty fifteen (3015) calendar days after receipt of the earlier of receiving such written notice or becoming aware of such Third Party Claim) provide the other party (the “Indemnifying Party”) with written notice of such Third-Third Party Claim, stating the nature, basis, the amount thereof (to the extent known or of a nature that can reasonably be 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 of a nature that can reasonably be estimated), any other remedy sought thereunder, any relevant time constraints relating thereto, and, to the extent practicable, any other material details pertaining thereto, along with copies of the relevant documents evidencing such Third Party Claim and the basis for indemnification sought. The failure Failure of the Indemnified Party to give such prompt written notice shall not, however, will not relieve the Indemnifying Party of from its indemnification obligationsobligations hereunder, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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. is prejudiced thereby.
(ii) The Indemnifying Party shall have the right be entitled to participate inin the defense of such Third Party Claim and, or by giving written notice to the Indemnified Partyif it so chooses, to assume the defense thereof at its expense (provided that the amount of any Third-Party Claim at such expense shall be a liability of the Indemnifying Party’s expense and Party hereunder subject to the limitations set forth in Section 9.05) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party if it gives notice to the Indemnified Party within twenty (20) calendar days (or such lesser number of days set forth in the notice as may be required by the relevant Proceeding applicable to such Third Party Claim) from receipt of any such notice of a Third Party Claim; provided that, the Indemnifying Party shall not be entitled to assume or maintain the control of the defense of any Third Party Claim (A) if such Third Party Claim relates to or arises in connection with any criminal proceeding action, indictment, allegation or investigation or any regulatory matter brought by a Governmental Entity, (B) the plaintiff seeks an injunction or other equitable relief against the Indemnified Party, (C) any insurance carrier for the Indemnified Party requires as a condition to the Indemnified Party’s own eligibility to recover insurance proceeds on account of such Third Party Claim that such carrier control the defense of such Third Party Claim, or (D) the Indemnified Party shall have reasonably concluded, based on the advice of counsel, that there is an actual or likely conflict of interest between the Indemnifying Party and the Indemnified Party shall cooperate in good faith in with respect to such defense. In the event that Third Party Claim.
(iii) If the Indemnifying Party assumes (A) does not (or is not entitled to) assume such defense, or (B) after assuming such defense, fails to take reasonable steps necessary to defend diligently such Third Party Claim within twenty (20) calendar days after receiving written notice from the defense Indemnified Party of any Third-the failure of the Indemnifying Party Claim, subject to Section 8.03(b), it shall have the right to take such action as it deems necessary to avoidreasonable steps and describing in reasonable detail such failure, dispute, defend, appeal or make counterclaims pertaining to any such Third-Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate assume its own defense; provided that, any acts or omissions by the Indemnifying Party in the exercise of its reasonable judgment in defending against such Third Party Claim shall not constitute such a failure; it being understood that the Indemnified Party’s right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. If the Indemnified Party assumes its own defense of a Third Party Claim, the Indemnified Party shall not settle, compromise, or consent to the entry of any Third-judgment, in respect of, such Third Party Claim without the consent of the Indemnifying Party, which shall not be unreasonably withheld, conditioned or delayed.
(iv) If the Indemnifying Party has assumed the defense, appeal or settlement proceedings of the Third Party Claim in accordance herewith, (w) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in (but not control) the defense, appeal or settlement proceedings of the Third Party Claim (provided that, in the event the Indemnified Party, with the advice of counsel, reasonably determines that there is a conflict of interests that makes it inappropriate for a single counsel selected by it to represent all parties under applicable standards of legal ethics, the Indemnified Party shall be entitled to indemnification for legal expenses (subject to the other limitations set forth herein) reasonably incurred in respect of its own counsel), (x) the Indemnified Party will not admit any liability, file any papers 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, which shall not be unreasonably withheld, conditioned or delayed (and such consent shall not be considered “unreasonably withheld” if (A) such settlement contains any admission of liability or wrongdoing by the Indemnifying Party and (B) such settlement imposes any sanctions, restrictions or obligations on the Indemnifying Party), (y) the Indemnifying Party will not admit to any wrongdoing by the Indemnified Party, and (z) the Indemnifying Party agrees to keep the Indemnified Party reasonably informed regarding the defense or settlement of such Third Party Claim and to consider in good faith any suggestions made by the Indemnified Party regarding the defense or settlement of such Third Party Claim.
(v) The Indemnifying Party shall not have the right to settle any Third Party Claim except if such settlement is consented to by the Indemnified Party in writing, such consent not to be unreasonably withheld, conditioned or delayed (and such consent shall not be considered “unreasonably withheld” if (A) such settlement contains any admission of liability or wrongdoing by the Indemnified Party, (B) such settlement imposes any sanctions, restrictions or obligations on the Indemnified Party, except for monetary damages for which the Indemnifying Party is solely responsible, or (C) such settlement does not contain a full release of the Indemnified Party with respect to such Third Party Claim). The parties will act in good faith in responding to, defending against, settling or otherwise dealing with Third Party Claims. Whether or not the Indemnifying Party has assumed the defense with respect to a Third Party Claim, such Indemnifying Party will not be obligated to indemnify the Indemnified Party hereunder for any settlement entered into or any judgment that was consented to without the Indemnifying Party’s right prior written consent (such consent not to control the defense thereofbe unreasonably withheld, provided that the fees conditioned or delayed).
(vi) The parties will also cooperate in any such defense, appeal or settlement proceedings, give each other reasonable access to all business records, employees and disbursements other documents and information relevant thereto and use reasonable best efforts to avoid production of such confidential information (consistent with applicable Law) and to cause all communications among employees, counsel shall and others representing any party to a Third Party Claim to be at the expense of the Indemnified Partymade so as to preserve any applicable attorney-client or work-product privileges.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (LivaNova PLC), Stock and Asset Purchase Agreement (LivaNova PLC)
Third Party Claims. If any (i) In the event that the Indemnified Party receives notice or otherwise learns of the assertion by a person or commencement of any Action made or brought by any Person entity who is not a party to this Agreement Party hereto or an Affiliate a Subsidiary of a party to this Agreement Party hereto of any claim or a Representative the commencement of the foregoing any action (a “"Third-Party Claim”") against such Indemnified Party with respect to which the Indemnifying Party is may be obligated to provide indemnification under this AgreementArticle X, the Indemnified Party shall will give written notification to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty of the Third-Party Claim. Such notification will be given within fifteen (3015) calendar days after receipt by the Indemnified Party of such notice of such Third-Party Claim. The failure , will be accompanied by reasonable supporting documentation submitted by such third party (to give the extent then in the possession of the Indemnified Party) and will describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such prompt written notice shall notThird-Party Claim and the amount of the claimed Damages; provided, however, that no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party will relieve the Indemnifying Party of its indemnification obligations, any liability for Damages or obligation hereunder except and only to the extent that the Indemnifying Party forfeits rights of any Damages caused by or defenses by reason arising out of such failure. Such notice by Within twenty (20) days after delivery of such notification, the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate inmay, or by giving upon written notice thereof to the Indemnified Party, to assume control of the defense of any such Third-Party Claim at with counsel reasonably satisfactory to the Indemnified Party. During any period in which the Indemnifying Party’s expense and by the Indemnifying Party’s own counselParty has not so assumed control of such defense, and the Indemnified Party shall cooperate will control such defense.
(ii) The Party not controlling such defense (the "Non-controlling Party") may participate therein at its own expense. The Party controlling such defense (the "Controlling Party") will keep the Non-controlling Party reasonably advised of the status of such Third-Party Claim and the defense thereof and will consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party will furnish the Controlling Party with such Information as it may have with respect to such Third-Party Claim (including copies of any summons, complaint or other pleading which may have been served on such Party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and will otherwise cooperate with and assist the Controlling Party in such defense. In the event that the Indemnifying Party assumes the defense of any such Third-Party Claim.
(iii) The Indemnifying Party will not agree to any settlement of, subject to Section 8.03(b)or the entry of any judgment arising from, it shall have the 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 without the name and on behalf prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnified Party will not be required if (A) the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment, and (B) such settlement or judgment includes a full, complete and unconditional release of the Indemnified Party from further Liability. The Indemnified Party shall have will not agree to any settlement of, or the right to participate in the defense entry of any judgment arising from, any such Third-Party Claim with counsel selected by it subject to without the prior written consent of the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall which consent will not be at the expense of the Indemnified Partyunreasonably withheld or delayed.
Appears in 2 contracts
Samples: Reverse Transition Services Agreement (Fidelity National Information Services, Inc.), Transition Services Agreement (Fidelity National Information Services, Inc.)
Third Party Claims. If any indemnified Party (an “Indemnified Party Party”) receives notice of the assertion or commencement of any Action action, suit, claim or other legal proceeding made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the indemnifying Party (the “Indemnifying Party Party”) is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(bsection 12.9(b), it shall have the 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. The Indemnified Party shall have the right 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 control the defense thereof, provided that and the fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party: (i) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (ii) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party. 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 defence of such Third Party Claim, the Indemnified Party may, subject to section 12.9(b), 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. The Parties shall cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available (subject to the provisions of section 5.8) records relating to such Third-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third-Party Claim.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Uranium Energy Corp)
Third Party Claims. If any Indemnified Party receives notice (a) Without limiting the general application of the assertion or commencement other provisions of any Action made or brought by any this Article 9, if another Person who is not a party to this Agreement alleges facts that, if true, would mean that a party has breached its representations and warranties in this Agreement, the party for whose benefit the representations and warranties are made will be entitled to indemnity for those allegations and demands and related Losses under and pursuant to this Article 9. If the Indemnified Party seeks indemnity under this Article 9 in respect of, arising out of or an Affiliate of involving a claim or demand, whether or not involving a Proceeding, by another Person not a party to this Agreement or a Representative of the foregoing (a “Third-Third Party Claim”) against such ), then the Indemnified Party with respect will include in the Claim Notice (i) notice of the commencement or threat of any Proceeding relating to which such Third Party Claim within 30 days after the Indemnified Party has received written notice of the commencement or threat of the Third Party Claim and (ii) the facts constituting the basis for such Third Party Claim and the amount of the damages claimed by the other Person, in each case to the extent known to the Indemnified Party. Notwithstanding the foregoing, no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, will relieve the Indemnifying Party of its indemnification obligations, any Liability or obligation under this Agreement except and only to the extent the Indemnifying Party has been materially prejudiced by the delay or other deficiency.
(b) Within 30 days after the Indemnified Party’s delivery of a Claim Notice under this Section 9.4, the Indemnifying Party may assume control of the defense of such Third Party Claim by giving to the Indemnified Party written notice of the intention to assume such defense, but if and only if the Indemnifying Party further:
(i) acknowledges in writing to the Indemnified Party that any Losses that may be assessed in connection with the Third Party Claim constitute Losses for which the Indemnified Party will be indemnified pursuant to this Article 9 without contest or objection and that the Indemnifying Party forfeits rights or defenses by reason will advance all expenses and costs of such failure. Such notice by defense; and
(ii) retains counsel for the defense of the Third Party Claim reasonably satisfactory to the Indemnified Party shall describe and furnishes to the Third-Indemnified Party Claim in reasonable detail, shall include copies evidence satisfactory to the Indemnified Party that the Indemnifying Party has and will have sufficient financial resources to fund on a current basis the cost of such defense and pay all material written evidence thereof and shall indicate Losses that may arise under the estimated amountThird Party Claim.
(c) However, if reasonably practicablethe Seller is the Indemnifying Party, of in no event may the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to assume, maintain control of, or participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel(A) involving criminal liability, and (B) in which any relief other than monetary damages is sought against the Indemnified Party shall cooperate or (C) in good faith in such defense. In which the event that the Indemnifying Party assumes the defense outcome of any Third-Party Claim, subject to Section 8.03(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal Judgment or make counterclaims pertaining to any such Third-Party Claim settlement in the name and on behalf matter could reasonably be expected to materially adversely affect the Indemnified Party’s Tax Liability or the ability of the Indemnified PartyParty to conduct its business (collectively, clauses (A) – (C), the “Special Claims”). The Indemnified An Indemnifying Party shall have the right to participate in the defense of will lose any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s previously acquired right to control the defense thereofof any Third Party Claim if for any reason the Indemnifying Party ceases to actively, provided competently and diligently conduct the defense.
(d) If the Indemnifying Party does not, or is not able to, assume or maintain control of the defense of a Third Party Claim in compliance with Section 9.4(b), the Indemnified Party will have the right to control the defense of the Third Party Claim. For avoidance of doubt, it is expressly understood that Seller has no obligation whatsoever to assume, control or otherwise defend a Third Party Claim. If the Indemnified Party controls the defense of the Third Party Claim, the Indemnifying Party agrees to pay to the Indemnified Party all reasonable attorneys’ fees and other costs and expenses of defending the Third Party Claim promptly upon the determination that the Indemnified Party is entitled to indemnification by the Indemnifying Party pursuant to this Agreement to be satisfied solely to the extent set forth in Section 9.6 below. To the extent that the Third Party Claim does not constitute a Special Claim, the party not controlling the defense (the “Noncontrolling Party”) may participate therein at its own expense. However, if the Indemnifying Party assumes control of such defense as permitted above and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to the Third Party Claim, then the reasonable fees and disbursements expenses of counsel to the Indemnified Party will be considered and included as “Losses” for purposes of this Agreement. The party controlling the defense (the “Controlling Party”) will reasonably advise the Noncontrolling Party of the status of the Third Party Claim and the defense thereof and, with respect to any Third Party Claim that does not relate to a Special Claim, the Controlling Party will consider in good faith recommendations made by the Noncontrolling Party. The Noncontrolling Party will furnish the Controlling Party with such counsel shall be at information as it may have with respect to such Third Party Claim and related Proceedings (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the expense same) and will otherwise cooperate with and assist in the defense of the Third Party Claim.
(e) The Indemnifying Party will not agree to any settlement of, or consent to the entry of any Judgment (other than a Judgment of dismissal on the merits) arising from, any such Third Party Claim without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnified Party will not be required if the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or any Judgment and such settlement or Judgment includes a full, complete and unconditional release of the Indemnified Party from further Liability. The Indemnified Party will not agree to any settlement of, or the entry of any Judgment (other than a Judgment of dismissal on the merits) arising from, any such Third Party Claim without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld or delayed.
(f) Notwithstanding the provisions of Section 10.11, the parties consent to the non-exclusive jurisdiction of any court in which a Proceeding is brought by another Person against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to the Proceeding or the matters alleged therein. The parties agree that process may be served on them with respect to such a claim anywhere in the world.
Appears in 2 contracts
Samples: Foreclosure Sale Agreement, Foreclosure Sale Agreement (Isc8 Inc. /De)
Third Party Claims. If any a Claim is made against an Indemnified Party receives notice of by a third party for which the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect may be entitled to which the Indemnifying Party is obligated to provide indemnification under this AgreementSection 6.1, the Indemnified Party shall give notice (the "Indemnity Notice") to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar specifying the particulars of such claim within 30 days after receipt it receives notification of such notice of such Third-Party the Claim. The failure Failure to give such prompt written notice within such time period shall not, however, relieve not prejudice the Indemnifying rights of an Indemnified Party of its indemnification obligations, except and only to the extent that the failure to give such notice materially adversely affects the ability of the Indemnifying Party forfeits rights to defend the Claim or defenses by reason of such failure. Such notice by to cure the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, breach or incorrectness of the Loss that has been representation, warranty, covenant or may be sustained by agreement giving rise to the Indemnified PartyClaim. The Indemnifying Party shall have the right to participate inin any negotiations or proceedings with respect to such Claim at its own expense. The Indemnified Party shall not settle or compromise any such Claim without the prior written consent of the Indemnifying Party, or by unless the Indemnifying Party has not, within 15 Business Days after the giving written of the Indemnity Notice, given notice to the Indemnified Party, Party that it wishes to dispute such Claim. If the Indemnifying Party does give such a notice,
(a) it shall have the right at its own cost and expense to assume the defense of any Third-Party such Claim at and to defend such Claim in the Indemnifying name of the Indemnified Party’s expense and by the Indemnifying Party’s own counsel, and ;
(b) the Indemnified Party shall cooperate in good faith be entitled to participate in such defense. In the event that defense at its own expense; and
(c) the Indemnifying Party assumes the defense of any Third-Party shall not settle or compromise such Claim, subject to Section 8.03(b), it shall have without the right to take prior written consent of the Indemnified Party unless such action as it deems necessary to avoid, dispute, defend, appeal settlement or make counterclaims pertaining to any such Third-Party Claim in the name and compromise involves no admission of liability by or on behalf of the Indemnified Party and includes a full and final comprehensive release of the Indemnified Party. The Indemnified Party shall have provide to the right Indemnifying Party, in confidence, all files, books, records and other information in its possession or control which may be relevant to participate the defense of such Claim. The Indemnified Party shall co-operate in all reasonable respects in the defense of any Third-Party such Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall be but at the expense of the Indemnifying Party. If the Indemnifying party fails, after the giving of such notice, diligently and reasonably to defend such Claim throughout the period that such Claim exists, its right to defend the Claim shall terminate and the Indemnified Party may assume the defense of such Claim at the sole expense of the Indemnifying Party. In such event, the Indemnified Party may compromise or settle such Claim, without the consent of the Indemnifying Party.
Appears in 2 contracts
Samples: Subordination Agreement (Amphastar Pharmaceuticals, Inc.), Royalty Purchase Agreement (Amphastar Pharmaceuticals, Inc.)
Third Party Claims. If any (a) In the event an Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate becomes aware of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against , such Indemnified Party with respect shall provide notice to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except such claim in writing with reasonable promptness and only to reasonable particularity in light of the extent that the Indemnifying Party forfeits rights or defenses by reason of such failurecircumstances then existing. Such The notice by the Indemnified Party provided shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence thereof detail and shall indicate the estimated amountamount (estimated, if reasonably practicablenecessary, and to the extent feasible) of the Loss Damages that has have been or may be sustained suffered by the third party. The failure to give any notice required by this Section 8.9 shall not affect any of Purchaser’s rights under this Article VIII or otherwise except and to the extent that such failure is materially prejudicial to the rights or obligations of Seller. Subject to Section 8.9(d), the Indemnifying Party shall have thirty (30) days after receipt of such notice to elect, at its option, to assume the defense of any such Third-Party Claim in which case: (i) the attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs incurred by the Indemnifying Party in connection with defending such Third-Party Claim shall be payable by such Indemnifying Party; and (ii) the Indemnified Party shall cooperate as reasonably requested by the Indemnifying Party in the defense of such Third-Party Claim (at the expense of the Indemnifying Party).
(b) The Indemnifying Party shall not consent to the entry of any judgment or enter into any settlement except with the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) to which the Indemnifying Party is obligated to furnish indemnification pursuant to this Agreement; provided that the consent of the Indemnified Party shall not be required if all of the following conditions are met: (i) the terms of the judgment or proposed settlement include, as an unconditional term thereof, the giving to the Indemnified Parties by the third party of a release of the Indemnified Parties from all Liability in respect of such Third-Party Claim, (ii) there is no finding or admission of (A) any violation of Law by the Indemnified PartyParties (or any Affiliate thereof) or (B) any violation of the rights of any Person, (iii) there is no effect on any other action or claims of a similar nature that may be made against the Indemnified Parties (or any Affiliate thereof), (iv) the sole form of relief is monetary damages which are paid in full by the Indemnifying Party and (v) the Third-Party Claim is not related to, either directly or indirectly, the Acquired Proprietary Rights or the Acquired Technology. The Indemnifying Notwithstanding the foregoing, the Indemnified Party shall have the right to participate inpay or settle, admit liability or otherwise dispose of any such Third-Party Claim without prior written consent; provided that, in such event, it shall waive any right to indemnity therefor by giving written notice the Indemnifying Party for such Claim unless the Indemnifying Party shall have consented to such payment or settlement, admission of liability or disposition of any such Third-Party Claim (such consent not to be unreasonably withheld or delayed).
(c) In the event that (i) an Indemnified Party gives Notice of Claim to the Indemnifying Party and the Indemnifying Party fails or elects not to assume the defense of a Third-Party Claim which the Indemnifying Party had the right to assume under this Section 8.9, (ii) the Indemnifying Party is not entitled to assume the defense of such Third-Party Claim pursuant to this Section 8.9 or (iii) the Indemnified Party and the Indemnifying Party are both named parties to the proceedings and the Indemnified Party reasonably concludes that the representation of both parties by the same counsel would be inappropriate due to the actual or potential differing interests between the Indemnifying Party and the Indemnified Party, the Indemnified Party shall have the right, with counsel of its choice, to defend, conduct and control the defense of such Third-Party Claim. The Indemnifying Party will provide reasonable cooperation in the defense of such Third-Party Claim. The Indemnified Party shall have the right to consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim on such terms as it may deem appropriate; provided, however, that the amount of any settlement made or entry of any judgment consented to by the Indemnified Party without the consent of the Indemnifying Party shall not be determinative of the validity of the claim, except with the consent of the Indemnified Party (not to be unreasonably withheld or delayed). If the Indemnifying Party does not elect to assume a defense of such Third-Party Claim which it has the right to assume hereunder, the Indemnified Party shall have no obligation to do so.
(d) Notwithstanding anything to the contrary contained herein, the Indemnifying Party will not be entitled to assume (or in the case of Section 8.9(d)(iv), to continue to be entitled to assume) the defense of such Third-Party Claim if:
(i) the Third-Party Claim seeks, in addition to or in lieu of monetary damages, any injunctive or other equitable relief (except where non-monetary relief is merely incidental to a primary claim or claims for monetary damages);
(ii) the Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation;
(iii) the Third-Party Claim would reasonably be expected to give rise to Damages which are more than the amount indemnifiable by the Indemnifying Party pursuant to this Article 8; 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 Third-Party Claim.
(e) Notwithstanding anything to the contrary contained herein, Seller will not be entitled to assume the defense of any Third-Party Claim at related to, either directly or indirectly, the Indemnifying Party’s expense and by Acquired Proprietary Rights or the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b), it shall have the 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. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall be at the expense of the Indemnified PartyAcquired Technology.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Integrated Device Technology Inc), Asset Purchase Agreement (Integrated Device Technology Inc)
Third Party Claims. If any (i) In the event that the Indemnified Party receives notice or otherwise learns of the assertion or commencement of any Action made or brought by any a Person who is not a party to this Agreement member of either Group of any claim or an Affiliate the commencement of a party to this Agreement any Action (any such claim or a Representative of the foregoing (Action, a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is may be obligated to provide indemnification under this AgreementArticle 6, the Indemnified Party shall give written notification to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days of the Third-Party Claim. Such notification shall be given promptly after receipt by the Indemnified Party of such notice of such Third-Party Claim. The failure , shall be accompanied by reasonable supporting documentation submitted by such third party (to give the extent then in the possession of the Indemnified Party) and shall describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such prompt written notice shall notThird-Party Claim and the amount of the claimed Damages (to the extent they can be reasonably estimated by the Indemnified Party based on available information); provided, however, that no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party shall relieve the Indemnifying Party of its indemnification obligations, any Liability or obligation hereunder except and only to the extent that the Indemnifying Party forfeits rights is prejudiced by such delay or defenses deficiency or to the extent the amount of any associated Damages is increased by reason of such failuredelay or deficiency. Such notice by If, and for so long as, (A) the Indemnifying Party notifies the Indemnified Party shall describe as soon as practicable, but in no event later than 30 days, after delivery of such notification that the Indemnifying Party does not dispute the Indemnifying Party’s obligation to indemnify hereunder and desires to defend the Indemnified Party against such Third-Party Claim, and (B) the Third-Party Claim in reasonable detail(I) does not involve criminal liability or any admission of wrongdoing, shall include copies of all (II) does not seek equitable relief or any other material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by non-monetary remedy against the Indemnified Party. The , (III) does not involve a claim which the Indemnified Party reasonably believes would have a material and adverse effect on the Indemnified Party’s business or (IV) is not one in which the Indemnifying Party is also a party and, in the opinion of the Indemnified Party’s outside counsel, joint representation would be inappropriate or there may be legal defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party, then except as hereinafter provided, such Indemnifying Party shall have the right to participate in, or defend against such Third-Party Claim by giving written notice appropriate proceedings with legal counsel reasonably acceptable to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and which proceedings shall be promptly settled or diligently prosecuted by the Indemnifying Party to a final conclusion. During any period in which the Indemnifying Party has not so assumed control of such defense, the Indemnified Party shall control such defense and is hereby authorized (but not obligated) prior to and during such period to file any motion, answer or other pleading and to take any other action which the Indemnified Party shall deem necessary or appropriate to protect the Indemnified Party’s interests.
(ii) The Party not controlling such defense (the “Non-controlling Party”) may participate therein at its own counselexpense; provided, however, that if the Indemnifying Party assumes control of such defense and the Indemnified Party shall cooperate in good faith in such defense. In the event concludes, upon advice of counsel, that the Indemnifying Party assumes and the defense of any Indemnified Party have conflicting interests or different defenses available with respect to such Third-Party Claim, subject the reasonable fees and expenses of one additional counsel to Section 8.03(b)the Indemnified Party shall be considered “Damages” for purposes of this Agreement. The Party controlling such defense (the “Controlling Party”) shall keep the Non-controlling Party reasonably advised of the status of such Third-Party Claim and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. Subject to receiving a confidentiality undertaking from the Controlling Party and any redactions that the Non-controlling Party determines are advisable for purposes of maintaining privilege, it the Non-controlling Party shall have furnish the right to take Controlling Party with such action Information as it deems necessary may have with respect to avoidsuch Third-Party Claim (including copies of any summons, disputecomplaint or other pleading which may have been served on such Party and any written claim, defenddemand, appeal invoice, billing or make counterclaims pertaining other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such Third-Party Claim.
(iii) The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such Third-Party Claim in without the name and on behalf prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that the consent of the Indemnified Party shall not be required if (A) such settlement involves only the payment of monetary damages and the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment, (B) such settlement or judgment includes a full, complete and unconditional release of the Indemnified Party and its Affiliates from further Liability and (C) such settlement involves no admission of wrongdoing by the Indemnified Party or its Affiliates. The Indemnified Party shall have not agree to any settlement of, or the right to participate in the defense entry of any judgment arising from, any such Third-Party Claim with counsel selected by it subject to without the prior written consent of the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel which consent shall not be at the expense of the Indemnified Partyunreasonably withheld, conditioned or delayed.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Bellerophon Therapeutics LLC), Separation and Distribution Agreement (Bellerophon Therapeutics LLC)
Third Party Claims. If any (i) In the event that the Indemnified Party receives written notice of the assertion or commencement of any Action made or brought by any a Person who is not a party to this Agreement member of either Group of any claim or an Affiliate the commencement of a party to this Agreement or a Representative of the foregoing any Action (collectively, a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is may be obligated to provide indemnification under this AgreementArticle 7, the Indemnified Party shall give written notice to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty of the Third-Party Claim. Such notification shall be given within ten (3010) calendar days Business Days after receipt by the Indemnified Party of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, provided, however, that no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party shall relieve the Indemnifying Party of its indemnification obligations, any Liability or obligation hereunder except and only to the extent that the Indemnifying Party forfeits rights of any Damages caused by or defenses by reason arising out of such failure. Such notice by Within twenty (20) calendar days after delivery of such written notice, the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate inmay, or by giving upon written notice thereof to the Indemnified Party, to assume control of the defense of any such Third-Party Claim at with counsel reasonably satisfactory to the Indemnified Party. During any period in which the Indemnifying Party has not so assumed control of such defense, the Indemnified Party shall control such defense.
(ii) The Party not controlling such defense (the “Non-controlling Party’s expense and by ”) may participate therein at its own expense; provided, however, that if the Indemnifying Party’s own counsel, Party assumes control of such defense and the Indemnified Party shall cooperate in good faith in such defense. In concludes, upon the event written opinion of counsel, that the Indemnifying Party assumes and the defense of any Indemnified Party have conflicting interests with respect to such Third-Party Claim, subject the reasonable fees and expenses of counsel to Section 8.03(b), it the Indemnified Party shall have be considered “Damages” for purposes of this Agreement. The Party controlling such defense (the right to take “Controlling Party”) shall keep the Non-controlling Party reasonably advised of the status of such action Third-Party Claim and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party shall furnish the Controlling Party with such information as it deems necessary may have with respect to avoidsuch Third-Party Claim (including copies of any summons, disputecomplaint or other pleading which may have been served on such Party and any written claim, defenddemand, appeal invoice, billing or make counterclaims pertaining other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such Third-Party Claim.
(iii) The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such Third-Party Claim in without the name and on behalf prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnified Party shall not be required if (x) the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment, and (y) such settlement or judgment includes a full, complete and unconditional release of the Indemnified Party from further Liability. The Indemnified Party shall have not agree to any settlement of, or the right to participate in the defense entry of any judgment arising from, any such Third-Party Claim with counsel selected by it subject to without the prior written consent of the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel which consent shall not be at the expense of the Indemnified Partyunreasonably withheld or delayed.
Appears in 2 contracts
Samples: Separation Agreement (Anpath Group, Inc.), Separation Agreement (Cyclone Power Technologies Inc)
Third Party Claims. 4.1 If any Indemnified Party the Buyer receives written notice of the commencement or assertion or commencement of any Action made proceeding, claim or brought investigation by any Person who a third party which could give rise to a Relevant Claim and if such claim is not as a party to this Agreement result of or an Affiliate of in connection with a party to this Agreement claim against either Company by, or a Representative liability of the foregoing either Company to, a third party (a “Third-Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement), the Indemnified Party Buyer shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty thereof (30a “Claims Notice”) calendar days after receipt of such notice of such Third-Party Claimto the Seller as soon as practicable. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party Claims Notice shall describe the Third-Third Party Claim in reasonable detailsufficient detail to enable to Seller to determine the effect of such proceeding, shall include copies claim or investigation or otherwise attach a copy of all material written evidence thereof the notice received from the Third Party, and shall indicate the estimated amountamount (reasonably estimated, if reasonably practicable, necessary) of the Loss Losses that has have been or may be sustained by suffered.
4.2 The Buyer shall assume control of and appoint lead counsel for the Indemnified Partydefence of such Third Party Claim. The Indemnifying Party shall have However, if it appears that, after taking into consideration the right to participate in, or by giving written notice to financial limitations on liability set forth in paragraphs 1.1(b) and 1.2 of this Schedule 4 the Indemnified Party, to assume Seller bears the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate greatest financial exposure in good faith in such defense. In the event that the Indemnifying Third Party assumes Claim is successful, the defense Seller shall be entitled to serve written notice on the Buyer (setting forth the reasons why the Seller believes that it has the greater financial exposure) within fifteen (15) Business Days of any Third-Seller’s receipt of the Claims Notice informing the Buyer that the Seller elects to assume control of such Third Party Claim. Pending any receipt of written notice from the Seller after the issuance of a Claims Notice, subject the Buyer shall assume control of such Third Party Claim provided, however, in the event that during the course of such Third Party Claim the threshold set forth in paragraph 1.1(b) of Schedule 4 would be reasonably likely to Section 8.03(b)be exceeded, it the Buyer shall notify the Seller and the Seller shall have the right to take such over and assume control of the Third Party Claim.
4.3 If the Seller assumes the control of the defence of the Third Party Claim in accordance with the provisions of this paragraph 4 of Schedule 4, the Buyer shall:
(a) provide to the Seller and its advisers (to the extent allowed under the applicable Laws) reasonable access to relevant documents and records within the Buyer’s and/or the Companies’ power or control for the purpose of enabling the Seller to investigate the matter;
(b) procure that each Company shall use its reasonable endeavours to procure that the professional advisers (both past and present) of either Company makes available to the Seller and its professional advisers their working papers in respect of each Company’s accounts for any relevant accounting period in connection with any Relevant Claim, to the extent allowed under applicable Laws;
(c) procure that both Companies shall take any action and institute any proceedings, and give reasonable information and assistance, as it deems necessary the Seller may reasonably request to avoiddispute, disputeresist, appeal, compromise, defend, appeal remedy, settle or make counterclaims pertaining mitigate the matter or enforce against a Person the rights of the Buyer or the Companies in relation to the matter; and
(d) be entitled to participate, at its own cost and expense, in the defence of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees, costs and expenses of any such Third-separate counsel to the Buyer pursuant to this paragraph 4 of Schedule 4, shall be paid by the Buyer.
4.4 If the Buyer shall control the defence of the Third Party Claim in accordance with the name provisions of this paragraph 4 of Schedule 4, the Seller shall nevertheless be entitled to participate, at its own cost and on behalf expense, in the defence of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees, costs and expenses of any such separate counsel to Seller pursuant to this paragraph 4 of Schedule 4, shall be paid and borne by the Seller. In addition, if the Buyer shall control the defence of the Indemnified PartyThird Party Claim in accordance with the provisions of this paragraph 4 of Schedule 4, the Buyer shall keep the Seller reasonably informed of any actual or proposed developments (including any meetings) and shall provide the Seller with copies of all correspondence and documentation relating to such Third Party Claim, matter or action, and such other information, assistance and access to records and personnel as the Seller reasonably requires and shall furthermore consult with the Seller before taking any significant decision or action affecting the defence or settlement of the Third Party Claim, the filing of pleadings and motions, the submission of any material correspondence and the selection of venue or forum.
4.5 Neither the Seller nor the Buyer shall settle a Third Party Claim in excess of three hundred and fifty thousand US dollars (US$350,000) (or the equivalent thereof in any other currency) without reasonable prior notice to and consultation with, and the written consent (not to be unreasonably withheld, delayed or conditioned) of, the other. The Indemnified Without prejudice to the generality of the foregoing, the Seller shall obtain the prior written consent of the Buyer (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement, compromise, admission or acknowledgement of the validity of such Third Party Claim if the settlement does not unconditionally release the Buyer and its affiliates from all liabilities and obligations with respect to such Third Party Claim, if the settlement requires any payment by the Buyer or any member of the Buyer’s Group or if the settlement imposes injunctive or other equitable relief against the Buyer or any member of the Buyer’s Group or acknowledges culpable conduct by the Buyer or any member of the Buyer’s Group and the Buyer shall have obtain the right prior written consent of the Seller (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement, compromise, admission or acknowledgement of the validity of such Third Party Claim if the settlement does not unconditionally release the Seller and its affiliates from all liabilities and obligations with respect to participate such Third Party Claim, if the settlement requires any payment by the Seller or any member of the Seller’s Group pursuant to any Transaction Document or otherwise, or if the settlement imposes injunctive or equitable relief against the Seller or any member of the Seller’s Group or acknowledges culpable conduct by the Seller or any member of the Seller’s Group. For the avoidance of doubt and notwithstanding any provision to the contrary contained herein, any settlement agreement entered into by the Buyer pursuant to this paragraph 4 of Schedule 4 shall in no event relieve the Seller from its obligation to indemnify the Buyer in accordance with this Agreement.
4.6 Each of the Seller and the Buyer shall cooperate, and cause their respective affiliates (and in any event the Buyer shall cause the Companies) to cooperate, in the defense defence or prosecution of any Third-Third Party Claim with counsel selected by it and the assumption of control of the defence of any Third Party Claim as provided in this paragraph 4 of Schedule 4 and shall furnish or cause to be furnished such records, information and testimony (subject to the Indemnifying Party’s right to control the defense thereofany applicable confidentiality agreement), provided that the fees and disbursements of attend such counsel shall conferences, discovery proceedings, hearings, trials or appeals as may be at the expense of the Indemnified Partyreasonably requested in connection therewith.
Appears in 2 contracts
Samples: Agreement for the Sale and Purchase of Shares, Sale and Purchase Agreement (Pioneer Natural Resources Co)
Third Party Claims. If any a Claim is made against an Indemnified Party receives notice of by a Third Party for which the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect may be entitled to which the Indemnifying Party is obligated to provide indemnification under this AgreementSection 7.1, the Indemnified Party shall give notice (the "INDEMNITY NOTICE") to the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar specifying the particulars of such claim within 30 days after receipt it receives notification of such notice of such Third-Party the Claim. The failure Failure to give such prompt written notice within such time period shall not, however, relieve not prejudice the Indemnifying rights of an Indemnified Party of its indemnification obligations, except and only to the extent that the failure to give such notice materially adversely affects the ability of the Indemnifying Party forfeits rights to defend the Claim or defenses by reason of such failure. Such notice by to cure the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, breach or incorrectness of the Loss that has been representation, warranty, covenant or may be sustained by agreement giving rise to the Indemnified PartyClaim. The Indemnifying Party shall have the right to participate inin any negotiations or proceedings with respect to such Claim at its own expense. The Indemnified Party shall not settle or compromise any such Claim without the prior written consent of the Indemnifying Party, or by unless the Indemnifying Party has not, within 7 Business Days after the giving written of the Indemnity Notice, given notice to the Indemnified Party, Party that it wishes to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in dispute such defenseClaim. In the event that If the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b)does give such a notice, it shall have the right at its own cost and expense to take assume the defence of such action as it deems necessary Claim and to avoid, dispute, defend, appeal or make counterclaims pertaining to any defend such Third-Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject provide to the Indemnifying Party’s right Party all files, books, records and other information in its possession or control which may be relevant to control the defense thereof, provided that the fees and disbursements defence of such counsel Claim. The Indemnified Party shall be co-operate in all reasonable respects in the defence of such Claim but at the expense of the Indemnifying Party. If the Indemnifying Party fails, after the giving of such notice, diligently and reasonably to defend such Claim throughout the period that such Claim exists, its right to defend the Claim shall terminate and the Indemnified Party may assume the defence of such Claim at the sole expense of the Indemnifying Party. In such event, the Indemnified Party may compromise or settle such Claim, without the consent of the Indemnifying Party.
Appears in 2 contracts
Samples: Royalty Purchase Agreement (Apollo Biopharmaceutics Inc), Royalty Purchase Agreement (Apollo Biopharmaceutics Inc)
Third Party Claims. If (a) In the event that an Indemnified Person is made a defendant in or party to any Indemnified Party receives notice of the assertion or commencement of any Action made or brought Claim instituted by any Person who is not a party third party, the liability or the costs or expenses of which are Losses indemnifiable pursuant to this Agreement or an Affiliate of a Article 9 (any such third party Claim being referred to this Agreement or a Representative of the foregoing (as a “Third-Third Party Claim”) against ), such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the party from whom indemnification hereunder is sought (the “Indemnifying Party reasonably Party”) prompt written notice thereof, but thereof specifying in any event not later than thirty reasonable detail the Losses with respect to such Third Party Claim (30) calendar days after receipt including a good faith estimate of such notice of such Third-Party Claim. The Losses, if reasonably available); provided, however, that the delay or failure to give such prompt written notice shall not, however, only relieve the Indemnifying Party of its indemnification obligations, except and only obligations under this Article 9 to the extent extent, if at all, that the Indemnifying Party forfeits rights or defenses is materially prejudiced by reason reasons of such delay or failure; and provided further, that such written notice must in all events be provided on or before the expiration of the applicable survival period set forth in Section 9.1. Such notice 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 shall describe relating to the Third-Third Party Claim in reasonable detailClaim, shall include copies of all material written evidence thereof other than privileged documents and shall indicate those notices and documents separately addressed to the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Indemnifying Party. .
(b) The Indemnifying Party shall will have the right to participate inassume the defense, or at its own expense and by giving counsel reasonably acceptable to the Indemnified Party, of the Indemnified Party against any Third Party Claim so long as (i) the Indemnifying Party gives written notice to the Indemnified Party within thirty (30) days after it first receives notice of such Third Party Claim pursuant to Section 9.5(a) that it will defend the Indemnified Party against the Third Party Claim, (ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party, (iii) the Indemnified Party has not been advised by counsel that a conflict is likely to exist if the same counsel were to represent the Indemnified Party and the Indemnifying Party in connection with conducting the defense of the Third Party Claim, (iv) the Third Party Claim does not relate to or otherwise arise in connection any criminal or regulatory enforcement action, (v) the Third Party Claim does not relate to the payment or non-payment of Taxes and (vi) the Indemnifying Party conducts the defense of the Third Party Claim diligently. If the Indemnifying Party does not, within fifteen (15) days of it first receiving notice of a Third Party Claim pursuant to Section 9.5(a), elect to assume the defense of such Third Party Claim, or if the Indemnified Party assumes such defense and, thereafter, any Third-of the conditions in subclauses (i) through (vi) above of this Section 9.5(b) exist, the applicable Indemnified Party Claim may assume the defense of, defend against, negotiate, settle or otherwise deal with such Third Party Claim, at the Indemnifying Party’s expense and by expense. If the applicable Indemnified Party defends any Third Party Claim pursuant to the preceding sentence or pursuant to subclauses (i) through (vi) above of this Section 9.5(b), then the Indemnifying Party’s own counselParty shall reimburse the applicable Indemnified Party for the reasonable costs and expenses of defending such Third Party Claim upon submission of periodic bills, and the Indemnified Indemnifying Party shall cooperate in good faith in the defense of such defenseThird Party Claim. In the event that If the Indemnifying Party assumes the defense of any Third-Third Party Claim, subject Claim pursuant to and in accordance with this Section 8.03(b9.5(b), it the Indemnifying Party shall have keep the right to take Indemnified Parties apprised of the status of such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Third Party Claim in and any significant developments with respect thereto and the name and on behalf of the Indemnified Party. The applicable Indemnified Party shall have the right to may retain separate co-counsel at its sole cost and expense and participate in the defense of any Third-the Third Party Claim.
(c) If the Indemnifying Party assumes the defense of a Third Party Claim pursuant to and in accordance with counsel selected by it subject Section 9.5(b), the Indemnified Parties shall cooperate in the defense or prosecution thereof and the Indemnified Parties shall agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party’s right Party may recommend if such settlement, compromise or discharge (i) does not require any payment or other action by, or limitation (including injunctive or any other equitable relief) on, any Indemnified Party and (ii) fully releases such Indemnified Parties in connection with such Third Party Claim. In no event shall the Indemnifying Party admit any liability with respect to control such Third Party Claim or settle, compromise, pay or discharge such Third Party Claim without the defense thereof, provided that the fees and disbursements of such counsel shall be at the expense prior written consent of the Indemnified PartyParties.
(d) Notwithstanding the foregoing provisions of Sections 9.5(b) and (c), the provisions of Section 6.13(b)(viii) shall apply in lieu of the provisions of Sections 9.5(b) and (c) to the extent the same Third Party Claim covered under this Section 9.5(b) is also the basis for an indemnification claim by a Medicis Indemnitee under the LipoSonix Agreement, as contemplated in Section 6.13.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Medicis Pharmaceutical Corp), Stock Purchase Agreement (Solta Medical Inc)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b8.04(b), it shall have the 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. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall be at the expense of the Indemnified Party.
Appears in 2 contracts
Samples: Patent Purchase and Assignment Agreement (Cen Biotech Inc), Merger Agreement (Sugarmade, Inc.)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who Claim is not a third-party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing claim (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement), the Indemnified following provisions shall apply:
(i) The Responding Party shall give will have the Indemnifying right to assume the defense of the Third-Party Claim with counsel of the Responding Party’s choice reasonably prompt written notice thereof, but in satisfactory to the Claiming Party at any event not later than time within thirty (30) calendar days after receipt the Claiming Party has given notice of the Third-Party Claim (or within a shorter period, if any, during which a defense must be commenced for the preservation of rights); provided, however, that the Responding Party must continuously conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard and must keep the Claiming Party reasonably informed of the status of the Third-Party Claim; and, provided, further, that the Claiming Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. If the Responding Party fails to give such written notice within such 30-day period (or such shorter period, if any, during which a defense must be commenced for the preservation of rights), then the Responding Party will no longer have the right to assume the defense of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve If the Indemnifying Responding Party of its indemnification obligations, except and only to assumes the extent that the Indemnifying Party forfeits rights or defenses by reason defense of such failure. Such notice by Third-Party Claim, then the Indemnified Persons on whose behalf such Person is responding will be obligated to indemnify the Claiming Party shall describe or Claiming Parties with respect to such Third-Party Claim.
(ii) So long as the Responding Party has assumed and continues conducting the defense of the Third-Party Claim in reasonable detailaccordance with Section 10.2(c)(i) above, shall include copies of all material written evidence thereof and shall indicate (A) the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Responding Party shall have the right to participate in, or by giving written notice will not consent to the Indemnified Party, to assume the defense entry of any judgment or enter into any settlement with respect to the Third-Party Claim at without the Indemnifying Party’s expense and prior written consent of the Claiming Party (not to be withheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by the Indemnifying Responding Party’s own counsel, does not impose an injunction or other equitable relief upon the Claiming Party, and includes, as an unconditional term thereof, the Indemnified giving by the claimant or plaintiff to the Claiming Party shall cooperate of a release (in good faith form and substance reasonably satisfactory to the Claiming Party) from all Liability in respect of such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject and (B) the Claiming Party will not consent to Section 8.03(bthe entry of any judgment or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Responding Party (not to be withheld unreasonably), it shall have .
(iii) In the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such event the Responding Party does not assume and continuously conduct the defense of the Third-Party Claim in accordance with Section 10.2(c)(i) above, (A) the name Claiming Party may defend against, and on behalf of consent to the Indemnified Party. The Indemnified Party shall have the right to participate in the defense entry of any reasonable judgment or enter into any reasonable settlement with respect to, the Third-Party Claim with counsel selected in any manner the Claiming Party reasonably may deem appropriate (and the Claiming Party need not consult with, or obtain any consent from, the Responding Party in connection therewith) and (B) the Responding Party will remain responsible for any Damages the Claiming Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by it subject the Third-Party Claim to the Indemnifying Party’s right to control the defense thereof, fullest extent provided that the fees and disbursements of such counsel shall be at the expense of the Indemnified Party.in this Article X.
Appears in 2 contracts
Samples: Merger Agreement (M/a-Com Technology Solutions Holdings, Inc.), Merger Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b8.04(b), it shall have the 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. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the . The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. 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, subject to Section 8.04(b), 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. The Parties shall cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available (subject to the provisions of Section 5.01) records relating to such Third-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending Party, management employees of the non-defending Party as may be reasonably necessary for the preparation of the defense of such Third-Party Claim.
Appears in 2 contracts
Samples: Merger Agreement (Cen Biotech Inc), Merger Agreement (Healthcare Solutions Management Group, Inc.)
Third Party Claims. If any (a) A Person seeking indemnification under this Article XIV (an “Indemnified Party receives notice Person”) shall give written notification to the Person from whom indemnification is sought (the “Indemnifying Person”) of the assertion or commencement of any Action made suit or brought proceeding relating to a third-party claim or any other assertion of Liabilities by any Person who is not a third party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated Indemnified Person has reasonable basis to provide believe may give rise to any Damages for which indemnification under pursuant to this Agreement, the Indemnified Party Article XIV may be sought. Such notification shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than be given within thirty (30) calendar days after receipt by the Indemnified Person of such notice of such Third-Party Claim. The failure , and shall describe the nature of, and (to give the extent known by the Indemnified Person) the facts constituting the basis for, such prompt written notice shall notThird-Party Claim and the amount of the claimed Damages; provided, however, that no delay on the part of the Indemnified Person in notifying the Indemnifying Person shall relieve the Indemnifying Party Person of its indemnification obligations, any Liability or obligation hereunder except and only to the extent that the Indemnifying Party forfeits rights of any Damages caused by or defenses by reason arising out of such failure. Such notice shall be accompanied by the Indemnified Party shall describe the copies of all relevant documentation with respect to such Third-Party Claim in reasonable detailClaim, shall include copies including, but not limited to, any summons, complaint or other pleading which may have been served, any written demand and any other documentation.
(b) Within ten (10) business days after delivery of all material such notification, the Indemnifying Person may, upon written evidence notice thereof and shall indicate to the estimated amountIndemnified Person, assume control of the defense of such suit, claim or proceeding with counsel reasonably satisfactory to the Indemnified Person. If the Indemnifying Person does not so assume control of such defense or, if reasonably practicablethe suit, of the Loss that has been claim or may be sustained by proceeding is other than solely for money damages, the Indemnified Party. The Indemnifying Party Person shall have the right to control such defense. The party not controlling such defense (the “Non-controlling Party”) may participate in, therein at its own expense. The party controlling such defense (the “Controlling Party”) shall keep the Non-controlling Party advised of the status of such suit or by giving written notice to the Indemnified Party, to assume proceeding and the defense of any Third-Party Claim at the Indemnifying Party’s expense thereof and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate consider in good faith in recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party shall furnish the Controlling Party with such defense. In the event that the Indemnifying Party assumes the defense information as it may have with respect to such suit or proceeding (including copies of any Third-summons, complaint or other pleading that may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party Claim, subject to Section 8.03(b), it shall have the 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. The Indemnified Party shall have the right to participate in the defense of such suit or proceeding. The Indemnifying Person shall not agree to any Third-Party Claim with counsel selected by it subject to settlement of, or the Indemnifying Party’s right to control entry of any judgment arising from, any such suit or proceeding without the defense thereof, provided that the fees and disbursements of such counsel shall be at the expense prior written consent of the Indemnified PartyPerson, which shall not be unreasonably withheld or delayed. The Indemnified Person shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the Indemnifying Person, which shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Granite Broadcasting Corp), Purchase and Sale Agreement (Granite Broadcasting Corp)
Third Party Claims. (a) If any third-party shall notify any Indemnified Party receives notice of the assertion or commencement of in writing with respect to any Action made or brought matter involving a claim by any Person who is not a such third-party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against which such Indemnified Party believes would give rise to a claim for indemnification against the Indemnifying Party under this Section 4.4, then the Indemnified Party shall promptly (i) notify the Indemnifying Party thereof in writing within thirty (30) days of receipt of notice of such claim and (ii) transmit to the Indemnifying Party a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third-Party Claim, a copy of all papers served with respect to which such claim (if any), and the Indemnifying Party is obligated to provide basis of the Indemnified Party’s request for indemnification under this Agreement; provided, however, that no delay on the part of the Indemnified Party shall give in so notifying the Indemnifying Party, and no failure on the part of the Indemnified Party reasonably prompt written notice thereofto comply with any of the procedures in this Section 4.4, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except any obligation under Section 4.1 with respect thereto unless (and only then solely to the extent that extent) the Indemnifying Party forfeits rights or defenses by reason is materially prejudiced thereby.
(b) Subject to Section 4.4(d) below, upon receipt of such failure. Such notice by the Indemnified Party shall describe the a Claim Notice with respect to a Third-Party Claim in reasonable detailClaim, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and notifying the Indemnified Party shall cooperate in good faith in such defense. In the event writing that the Indemnifying Party assumes elects to assume the defense of any such Third-Party Claim, subject to Section 8.03(b)and upon delivery of such notice by the Indemnifying Party, it the Indemnifying Party shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any defend such Third-Party Claim in with counsel, selected by it, who is reasonably satisfactory to the name Indemnified Party, by all appropriate proceedings, which proceedings shall be prosecuted actively and on behalf diligently by the Indemnifying Party to a final conclusion or settled. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to consent to the entry of a judgment or enter into any compromise or settlement with respect to such Third-Party Claim without the prior written consent of the Indemnified Party (which shall not be unreasonably withheld).
(c) If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third-Party Claim which the Indemnifying Party elects to contest, including the making of any related counterclaim against the Person asserting the Third-Party Claim or any cross complaint against any Person. The Indemnified Party shall have the right to receive copies of all pleadings, notices and communications with respect to any Third-Party Claim, other than any privileged communications between the Indemnifying Party and its counsel, and shall be entitled, at its sole cost and expense, to retain separate co-counsel and participate in, but not control, any defense or settlement of any Third-Party Claim assumed by the Indemnifying Party pursuant to Section 4.4(b); provided, however, if, based on written advice of counsel, the Indemnified Party concludes that there is a reasonable likelihood of a conflict of interest between the Indemnifying Party and the Indemnified Party with respect to such Third-Party Claim, the Indemnifying Party shall bear the reasonable costs and expenses of one counsel to the Indemnified Party in connection with such defense.
(d) If (i) the Indemnifying Party fails to notify the Indemnified Party within the thirty (30) days after receipt of any Claim Notice that the Indemnifying Party elects to assume the defense of any Third-Party Claim pursuant to Section 4.4(b), (ii) the Indemnifying Party elects to assume the defense of any Third-Party Claim pursuant to Section 4.4(b) but fails to diligently prosecute or settle such Third-Party Claim, (iii) the Indemnifying Party and the Indemnified Party are parties to the same proceeding (or, assuming the veracity of the facts alleged by the party bringing the Third-Party Claim, the Indemnifying Party and the Indemnified Party may become parties to the same proceeding) and the Indemnified Party determines in good faith that a conflict of interest exists between the Indemnifying Party and the Indemnified Party, (iv) the Indemnified Party determines in good faith that there is a reasonable possibility that it will be prejudiced in any material respect beyond the ambit of such Third-Party Claim by the Indemnifying Party’s control of the defense and proceedings with respect to any Third-Party Claim, or (v) such Third-Party Claim is a claim by a governmental tax authority, then (A) the Indemnified Party shall have the right to assume full control of the defense and proceedings with respect to such Third-Party Claim, and the Indemnified Party may compromise or settle such Third-Party Claim without consulting with, or obtaining consent from, the Indemnifying Party in connection therewith (it being understood and agreed that the Indemnifying Party shall not be bound by any such compromise or settlement entered into without its consent) and (B) the Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third-Party Claim (including fees and disbursements of no more than one counsel selected by it subject per jurisdiction (such counsel reasonably acceptable to the Indemnifying Party’s right to ) reasonably incurred in connection with such Third-Party Claim). The Indemnified Party shall have full control the defense thereof, provided that the fees and disbursements of such counsel defense and proceedings, although the Indemnifying Party shall be entitled to participate in any defense or settlement controlled by the Indemnified Party pursuant to this Section 4.4(d) at its sole expense. Any compromise or settlement of a Third-Party Claim effected by the expense Indemnified Party without the Indemnifying Party’s consent shall not be dispositive of the amount of any Losses with respect to such Third-Party Claim.
(e) In the event any Indemnified Party should have a claim against the Indemnifying Party hereunder which does not involve a Third-Party Claim, the Indemnified Party shall promptly transmit to the Indemnifying Party a written notice (the “Indemnity Notice”) describing in reasonable detail the nature of the claim, the Indemnified Party’s best estimate of the amount of Losses attributable to such claim and the basis of the Indemnified Party’s request for indemnification under this Agreement; provided that no delay on the part of the Indemnified Party in delivering the Indemnity Notice pursuant to this Section 4.4(e) shall relieve the Indemnifying Party of any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is prejudiced thereby. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the Indemnity Notice that the Indemnifying Party disputes such claim (the “Dispute Notice”), the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
Appears in 2 contracts
Samples: Purchase Agreement (China Mobile Games & Entertainment Group LTD), Purchase Agreement (China Mobile Games & Entertainment Group LTD)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action action, suit, claim or other legal proceeding made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b8.5(b), it shall have the 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. The Indemnified Party shall have the right 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 control the defense thereof. If the Indemnifying Party elects not to compromise or defend such Third-Party Claim or fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, provided that the fees Indemnified Party may, subject to Section 8.5(b), pay, compromise, defend such Third-Party Claim and disbursements seek indemnification for any and all Losses based upon, arising from or relating to such Third-Party Claim. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available records relating to such Third-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such counsel shall be at the expense of the Indemnified PartyThird-Party Claim.
Appears in 2 contracts
Samples: Series B Preferred Shares Purchase Agreement (360 Finance, Inc.), Series B Preferred Shares Purchase Agreement (360 Finance, Inc.)
Third Party Claims. (a) If any Indemnified a Party receives entitled to indemnification hereunder (an “Indemnitee”) shall receive notice or otherwise learn of the assertion or commencement by a third party (including any governmental authority) of any Action made claim or brought of the commencement by any such Person who is not a party to this Agreement of any action, suit, or an Affiliate of a party to this Agreement or a Representative of the foregoing proceeding (collectively, a “Third-Third Party Claim”) against such Indemnified Party with respect to which a Party required to provide indemnification hereunder (an “Indemnifying Party”) may be obligated to provide indemnification to such Indemnitee, such Indemnitee shall give such Indemnifying Party and each Party to this Agreement written notice thereof as soon as reasonably practicable, but no later than thirty (30) days after becoming aware of such Third Party Claim. Any such notice shall describe the Third Party Claim in reasonable detail. If any Party shall receive notice or otherwise learn of the assertion of a Third Party Claim for which an Indemnifying Party may be obligated to provide indemnification to an Indemnitee, such Party shall give the other Party to this Agreement written notice thereof within thirty (30) days after becoming aware of such Third Party Claim. Any such notice shall describe the Third Party Claim in reasonable detail. Notwithstanding the foregoing, the failure of any Indemnitee or other Party to give such notice as provided hereunder shall not relieve the related Indemnifying Party of its obligations under this ARTICLE VI except to the extent that such Indemnifying Party is actually prejudiced by such failure to give notice.
(b) An Indemnifying Party shall be entitled to assume the defense of any Third Party Claim, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel; provided that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment, based upon written advice of its counsel, a conflict of interest between such Indemnitees and such Indemnifying Party exists in respect of such claim, such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by such Indemnifying Party. Within thirty (30) days after the receipt of notice from an Indemnitee in accordance with Section 6.4 (or sooner, if the nature of such Third Party Claim so requires), the Indemnifying Party shall notify the Indemnitee of its election whether the Indemnifying Party will assume responsibility for defending such Third Party Claim. After notice from an Indemnifying Party to an Indemnitee of its election to assume the defense of a Third Party Claim, such Indemnitee shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise or settlement thereof, but the fees and expenses of such counsel shall be the expense of such Indemnitee.
(c) If an Indemnifying Party fails to assume the defense of a Third Party Claim within thirty (30) days after receipt of written notice of such claim, the Indemnitee will, upon delivering notice to such effect to the Indemnifying Party, have the right to undertake the defense, compromise or settlement of such Third Party Claim subject to the limitations as set forth herein; provided, however, that such Third Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, delayed or conditioned. If the Indemnitee assumes the defense of any Third Party Claim, it shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall reimburse all such costs and expenses of the Indemnitee in the event it is ultimately determined by a court of competent jurisdiction that the Indemnifying Party is obligated to provide indemnification under this Agreement, indemnify the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of Indemnitee with respect to such notice of such Third-Third Party Claim. The failure to give such prompt written notice In no event shall not, however, relieve the an Indemnifying Party be liable for any settlement effected without its consent, which consent will not be unreasonably withheld, delayed or conditioned.
(d) In the event of its indemnification obligations, except and only to the extent that the payment by or on behalf of any Indemnifying Party forfeits rights or defenses by reason of to any Indemnitee in connection with any Third Party Claim, such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right, defense or claim relating to such Third Party Claim against any claimant or plaintiff asserting such Third Party Claim or against any other Person. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the right to participate cost and expense (including allocated costs of in, or by giving written notice to the Indemnified -house counsel and other in-house personnel) of such Indemnifying Party, to assume the in prosecuting any subrogated right, defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b), it shall have the 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. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall be at the expense of the Indemnified Partyclaim.
Appears in 2 contracts
Samples: Transition Funding, Support and Services Agreement (Vivani Medical, Inc.), Transition Funding, Support and Services Agreement (Cortigent, Inc.)
Third Party Claims. If any Indemnified Party receives notice demand, claim, action or cause of action, suit, proceeding or investigation (collectively, the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) is brought against an Indemnified Party for which the Indemnified Party intends to seek indemnity from the other party hereto (the “Indemnifying Party”), then the Indemnified Party within ten (10) days after such Indemnified Party’s receipt of the Claim, shall notify the Indemnifying Party with respect pursuant to this Article 11, which notice shall contain a reasonably thorough description of the nature and amount of the Claim (the “Claim Notice”). The Indemnifying Party shall 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 the terms 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 the Claim shall not relieve the Indemnifying Party from any liability which the Indemnifying Party is obligated may have pursuant to provide indemnification under this Article 11, except to the extent that such failure to notify the Indemnifying Party prejudices the Indemnifying Party. The Indemnified Party shall use all reasonable efforts to assist the Indemnifying Party in the vigorous defense of the Claim. All costs and expenses incurred by the Indemnified Party in defending the Claim shall be paid by the Indemnifying Party. If, however, the Indemnified Party desires to participate in any such defense or settlement, it may do so at its sole cost and expense (it being understood that the Indemnifying Party shall be entitled to control the defense). The Indemnified Party shall not settle the Claim. If the Indemnifying Party does not elect to control the defense of the Claim, within the aforesaid ten (10) day period by proper notice pursuant to the terms 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 the aforesaid ten (10) day period by proper notice pursuant to this Article 11, shall be deemed to be an election by the Indemnifying Party not to control the defense of the Claim); provided, however, that the Indemnifying Party shall be entitled, if it so desires, to participate therein (it being understood that in such circumstances, the Indemnified Party shall be entitled to control the defense). Regardless of which party has undertaken to defend any claim, the Indemnifying Party may, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any such claim or demand; provided however, that if any settlement would result in the imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the Indemnified Party, the consent of the Indemnified Party shall be a condition to any such settlement. Notwithstanding the foregoing provisions of this Article 11, as a condition to the Indemnifying Party either having the right to defend the Claim, or having control over settlement as indicated in this Article 11, the Indemnifying Party shall execute an agreement, satisfactory to the other party acknowledging its liability for indemnification pursuant to this Article 11. Whether the Indemnifying Party shall control and assume the defense of the Claim or only participate in the defense or settlement of the Claim, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereofand its counsel access, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure during normal business hours, to give such prompt written notice shall notall relevant business records and other documents, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all 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 the right permit them to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense consult with its employees and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b), it shall have the 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. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall be at the expense of the Indemnified Party.
Appears in 2 contracts
Samples: Share Exchange Agreement (General Steel Holdings Inc), Share Exchange Agreement (General Steel Holdings Inc)
Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence thereof 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 the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense; provided, that, if the Indemnifying Party is the Seller, such Indemnifying Party shall not have the right to defend or direct the defense of any such Third-Party Claim that seeks an injunction or other equitable relief against the Indemnified Party. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 8.03(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal appeal, or make counterclaims pertaining to any such Third-Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third-Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the . The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that, if in the reasonable opinion of counsel to the Indemnified Party, (i) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party or (ii) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. 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, subject to Section 8.03(b), 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. The Seller and the Purchasers shall cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available (subject to the provisions of Section 5.06) records relating to such Third-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third-Party Claim.
Appears in 2 contracts
Samples: Share Purchase Agreement (Fast Track Solutions, Inc.), Share Purchase Agreement (Catapult Solutions, Inc.)
