Third Party Indemnification. The obligations of an Indemnitor to indemnify Indemnitees under this Article VIII hereof with respect to Damages resulting from the assertion of liability by third parties (a "Claim"), will be subject to the following terms and conditions: (a) Any party against whom any Claim is asserted will give the Indemnitor written notice of any such Claim promptly after learning of such Claim, and the Indemnitor may at its option undertake the defense thereof by representatives of its own choosing. If the Indemnitor, within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Indemnitee against whom such claim has been made will (upon further notice to Indemnitor) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk, and at the expense, of the Indemnitor, subject to the right of the Indemnitor to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof. (b) Anything in this Section 8.5 to the contrary, notwithstanding, an Indemnitor shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (i) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to be borne by the indemnifying party without the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Selas Corp of America)
Third Party Indemnification. The obligations of an Indemnitor the Seller to indemnify the Buyer Indemnitees under this Article VIII Section 7.2 hereof with respect to Buyer Damages and the obligations of the Buyer Indemnitors to indemnify the Seller Indemnitees under Section 7.3 with respect to Seller Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a "Claim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the Indemnitor indemnifying party written notice of any such Claim promptly after learning of such Claim, and the Indemnitor indemnifying party may at its option undertake the defense thereof by representatives of its own choosing. Failure to give prompt notice of a Claim hereunder shall not affect the indemnifying party's obligations under this Article VII, except to the extent the indemnifying party is materially prejudiced by such failure to give prompt notice. If the Indemnitorindemnifying party, within thirty (30) 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such claim Claim has been made will (upon further notice to Indemnitorthe indemnifying party) have the right to undertake the defense, compromise or settlement (subject to the terms of Section 7.4(c)) of such claim on behalf of and for the account and risk, and at the expense, of the Indemnitorindemnifying party, subject to the right of the Indemnitor indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof.
(b) Anything So long as the indemnifying party has assumed the defense of any Claim in this the manner set forth above, the indemnifying party shall have the exclusive right to contest, defend and litigate such Claim and, except as expressly provided in Section 8.5 7.4(c), shall have the exclusive right, in its sole discretion, to settle any such claim, either before or after the initiation of litigation at such time and on such terms as the indemnifying party deems appropriate. If the indemnifying party elects not to assume the defense of any such Claim (which shall be without prejudice to its right at any time to assume subsequently such defense), the indemnifying party will nonetheless be entitled, at its own expense, to participate in such defense. The indemnified party shall have the right to participate, with separate counsel (which counsel shall act in an advisory capacity only), in any such contest, defense, litigation or settlement conducted by the indemnifying party. After notice from the indemnifying party to such indemnified party of the indemnifying party's election to assume the defense of such Claim, the indemnifying party will not be liable to such indemnified party for any expenses of the indemnified party's counsel that are subsequently incurred in connection with the defense thereof; provided, however, that the expense of such indemnified party's counsel shall be paid by the indemnifying party if (i) the indemnifying party requested such separate counsel to participate or (ii) in the reasonable opinion of counsel to the contraryindemnified party, notwithstandinga significant conflict of interest exists between the indemnifying party, an Indemnitor on the one hand, and the indemnified party, on the other hand, that would make such separate representation clearly advisable.
(c) Without the prior written consent of the indemnified party (which consent shall not enter into be unreasonably withheld or delayed), the indemnifying party shall not admit any settlement liability with respect to, or settle, compromise of or discharge, any action, suit or proceeding Claim or consent to the entry of any judgment (i) which does not include with respect thereto, except in the case of any settlement that includes as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee indemnified party of a written release from all liability in respect of such actionClaim. In addition, suit whether or proceeding or (ii) for other than monetary damages to be borne by not the indemnifying party shall have assumed the defense of the Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, any Claim or consent to the entry of any judgment with respect thereto, without the prior written consent of the Indemnitee, indemnifying party (which consent shall not be unreasonably withheldwithheld or delayed), and the indemnifying party will not be subject to any liability for any such admission, settlement, compromise, discharge or consent to judgment made by an indemnified party without such prior written consent of the indemnifying party.
(d) The indemnifying party and the indemnified party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Article VII, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Driversshield Com Corp), Stock Purchase Agreement (Accessity Corp)
Third Party Indemnification. The obligations of an Indemnitor the Sellers to indemnify the Buyer Indemnitees under this Article VIII Section 7.2 hereof with respect and the obligations of the Buyer to Damages indemnify the Seller Indemnitees under Section 7.3 hereof, in each case resulting from the assertion of liability by a third parties party (each, as the case may be, a "“Claim"”), will shall be further subject to the following terms and conditions:
(ai) Any party against whom any Claim is asserted will shall give the Indemnitor party (or the parties) required to provide indemnity hereunder written notice of any such Claim promptly after learning of such Claim, and the Indemnitor may indemnifying party may, at its option option, undertake the defense thereof with counsel chosen by representatives it but reasonably satisfactory to the indemnified party. Failure to give prompt notice of its own choosinga Claim hereunder shall not affect the indemnifying party’s obligations under this Section 7.4, except to the extent the indemnifying party is materially prejudiced by such failure to give prompt notice. If the Indemnitorindemnifying party, within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Buyer Indemnitee or the Seller Indemnitee, as the case may be (each, an “Indemnitee”), against whom such claim Claim has been made will (upon further notice to Indemnitor) shall have the right right, but shall not be obligated, to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk, and at the expense, of the Indemnitor, subject to the right of the Indemnitor to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereofindemnifying party.
(bii) Anything in this Section 8.5 7.4 to the contrary, contrary notwithstanding, an Indemnitor the indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (iA) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release from all liability in respect of such action, suit or proceeding proceeding, or (iiB) for other than monetary damages to be borne by the indemnifying party without the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld.
Appears in 1 contract
Samples: Asset Purchase Agreement (Graymark Healthcare, Inc.)
Third Party Indemnification. The obligations of an Indemnitor to indemnify Indemnitees under Section 9.2 or Section 9.3, as applicable, of this Article VIII IX hereof with respect to Damages resulting from the assertion of liability by third parties (a "Claim"), will be subject to the following additional terms and conditions:
(a) Any party Indemnitee against whom any Claim is asserted will give the Indemnitor advance written notice of any such Claim promptly after learning of such Claim, and the Indemnitor may may, upon written notice to the Indemnitee, at its sole option elect to undertake and pay for the defense thereof by representatives of its own choosingchoosing but that is reasonably acceptable to the Indemnitee. The Indemnitor shall not, following and so long as it diligently conducts such defense, be liable to the Indemnitee for any fees of other counsel or any other expenses with respect to the defense of such Claim, however the Indemnitee may retain legal counsel of its own choosing to participate in the defense of such Claim at its own expense. If the Indemnitor, within thirty (30) days after written notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Indemnitee against whom such claim Claim has been made will (upon further written notice to Indemnitor) have the right to undertake the defense, defense or reasonable compromise or settlement of such claim Claim on behalf of and for the account and risk, and at the expense, risk of the Indemnitor, subject and the costs and expenses of defense (including CONFIDENTIAL reasonable attorneys' fees) of Claims and Damages (including the cost of any such reasonable compromise or settlement of any such Claim) for which indemnification is required under Article IX shall be reimbursed to the Indemnitee by the Indemnitor. Notice of any third-party Claim to the Indemnitor by the Indemnitee must specifically include to the extent available to Indemnitee: (i) the factual basis for such Claim, and (ii) the amount of the Claim. For the purposes of investigation and/or defense of the Claim, the Indemnitee agrees to make available to the Indemnitor and/or its authorized representative(s) the information relied upon by the Indemnitee to substantiate the Claim and/or defend the Claim. The Indemnitee further agrees to give the Indemnitor reasonable access to the books, records, and assets of the Indemnitee that relate to the act or omission or occurrence upon which the third-party claim is based and the right of the Indemnitor Indemnitor, upon reasonable advance notice, to assume interview any relevant personnel of the defense of such Indemnitee concerning the Claim at any time prior to settlement, compromise or final determination thereofduring normal business hours.
(b) Anything in this Section 8.5 9.5 to the contrary, contrary notwithstanding, : (i) an Indemnitor shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (i) which does not include as an unconditional term thereof the delivery by the third-party claimant or plaintiff to the Indemnitee of a written release from all liability in respect of such action, suit or proceeding or and (ii) for other than monetary damages to be borne by neither the indemnifying party Indemnitor nor the Indemnitee shall enter into any compromise or settlement of any action, suit or proceeding without the prior written consent of the Indemniteeother, which consent shall not be unreasonably withheld.
Appears in 1 contract
Third Party Indemnification. The obligations of an Indemnitor Seller to indemnify the Buyer Indemnitees under this Article VIII hereof Section 7.2 with respect to Buyer Damages and the obligations of Buyer to indemnify the Seller Indemnitees under Section 7.3 with respect to Seller Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a "“Claim"”), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the Indemnitor indemnifying party written notice of any such Claim promptly after learning of such Claim, and the Indemnitor may indemnifying party may, at its option option, undertake the defense thereof of such Claim by representatives of its own choosing. Failure to give prompt notice of a Claim under this Agreement shall not affect the indemnifying party obligations under this Article VII, except to the extent the indemnifying party is materially prejudiced by such failure to give prompt notice. If the Indemnitorindemnifying party, within thirty (30) 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such claim Claim has been made will (upon further notice to Indemnitorthe indemnifying party) have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk, and at the expense, of the Indemnitorindemnifying party, subject to the right of the Indemnitor indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination of such Claim. If the indemnifying party assumes such defense, the Buyer Indemnitee or the Seller Indemnitee, as the case may be, shall have the right to participate in the defense thereof and to employ counsel, at its own expense (which expense shall not constitute a Buyer Damage or Seller Damage, as applicable, unless the Buyer Indemnitee or the Seller Indemnitee, as the case may be, reasonably determines that the indemnifying party is not adequately representing or, because of a conflict of interest, may not adequately represent, any interests of the Buyer Indemnitee or the Seller Indemnitee, as the case may be, and only to the extent that such expenses are reasonable), separate from the counsel employed by the Buyer Indemnitee or the Seller Indemnitee, it being understood, however, that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the Buyer Indemnitee or the Seller Indemnitee, as the case may be, for any period during which the indemnifying party has not assumed the defense thereof.
(b) Anything in this Section 8.5 7.4 to the contrary, contrary notwithstanding, an Indemnitor the indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (i) which does not include as an unconditional term thereof of the delivery by the claimant or plaintiff to the Seller Indemnitee or the Buyer Indemnitee, as the case may be, of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to be borne by the indemnifying party party, without the prior written consent of the Seller Indemnitee or the Buyer Indemnitee, as the case may be, which consent shall not be unreasonably withheld.
(c) The indemnifying party and the Seller Indemnitee or Buyer Indemnitee, as applicable, shall provide each other such cooperation as may be reasonably requested and at the expense of the indemnifying party in all aspects of any investigation, defense, pretrial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought under this Article VII, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Imperial Sugar Co /New/)
Third Party Indemnification. The obligations of an Indemnitor Seller to indemnify the Buyer Indemnitees under this Article VIII hereof with respect Sections 6.2 and 6.4 and the obligations of Buyer to Damages indemnify the Seller Indemnitees under Section 6.3 hereof, in each case resulting from the assertion of liability Liability by a third parties party (each, as the case may be, a "“Claim"”), will shall be further subject to the following terms and conditions:
(ai) Any party against whom any Claim is asserted will shall give the Indemnitor party (or parties) required to provide indemnity hereunder written notice of any such Claim promptly after learning of such Claim, and the Indemnitor indemnifying party may at its option undertake the defense thereof with counsel chosen by representatives it but reasonably satisfactory to the indemnified party. Failure to give prompt notice of its own choosinga Claim hereunder shall not affect the indemnifying party’s obligations under this Section 6.5, except to the extent the indemnifying party is materially prejudiced by such failure to give prompt notice. If the Indemnitorindemnifying party, within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Buyer Indemnitee or Seller Indemnitee, as the case may be (each, an “Indemnitee”), against whom such claim Claim has been made will (upon further notice to Indemnitor) shall have the right right, but shall not be obligated, to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk, and at the expense, of the Indemnitor, subject to the right of the Indemnitor to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereofindemnifying party.
(bii) Anything in this Section 8.5 6.5 to the contrary, contrary notwithstanding, an Indemnitor the indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (ia) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release from all liability Liability in respect of such action, suit or proceeding or (iib) for other than monetary damages to be borne by the indemnifying party without the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld.
Appears in 1 contract
Samples: Asset Purchase Agreement (United Fuel & Energy Corp)
Third Party Indemnification. The obligations of an Indemnitor the Seller and the Seller Shareholders to indemnify the Buyer Indemnitees under this Article VIII Section 7.2 hereof with respect to Buyer Damages and the obligations of Cendant, the Buyer and the Sub to indemnify the Seller Indemnitees under Section 7.3 with respect to Seller Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a "Claim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the Indemnitor indemnifying party written notice of any such Claim promptly after learning of such Claim, and the Indemnitor indemnifying party may at its option undertake the defense thereof by representatives of its own choosing. Failure to give prompt notice of a Claim hereunder shall not affect the indemnifying party's obligations under this Article VII, except to the extent the indemnifying party is materially prejudiced by such failure to give prompt notice. If the Indemnitorindemnifying party, within thirty (30) 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such claim has been made will (upon further notice to Indemnitorthe indemnifying party) have the right to undertake the defense, compromise or settlement (subject to the terms of Section 7.4(c)) of such claim on behalf of and for the account and risk, and at the expense, of the Indemnitorindemnifying party, subject to the right of the Indemnitor indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof.
(b) Anything So long as the indemnifying party has assumed the defense of any Claim in this the manner set forth above, the indemnifying party shall have the exclusive right to contest, defend and litigate such Claim and, except as expressly provided in Section 8.5 7.4(c), shall have the exclusive right, in its sole discretion, to settle any such claim, either before or after the initiation of litigation at such time and on such terms as the indemnifying party deems appropriate. If the indemnifying party elects not to assume the defense of any such Claim (which shall be without prejudice to its right at any time to assume subsequently such defense), the indemnifying party will nonetheless be entitled, at its own expense, to participate in such defense. The indemnified party shall have the right to participate, with separate counsel (which counsel shall act in an advisory capacity only), in any such contest, defense, litigation or settlement conducted by the indemnifying party. After notice from the indemnifying party to such indemnified party of the indemnifying party's election to assume the defense of such Claim, the indemnifying party will not be liable to such indemnified party for any expenses of the indemnified party's counsel that are subsequently incurred in connection with the defense thereof; PROVIDED, HOWEVER, that the expense of such indemnified party's counsel shall be paid by the indemnifying party if (i) the indemnifying party requested such separate counsel to participate or (ii) in the reasonable opinion of counsel to the contraryindemnified party, notwithstandinga significant conflict of interest exists between the indemnifying party, an Indemnitor on the one hand, and the indemnified party, on the other hand, that would make such separate representation clearly advisable.
(c) Without the prior written consent of the indemnified party (which consent shall not enter into be unreasonably withheld or delayed), the indemnifying party shall not admit any settlement liability with respect to, or settle, compromise of or discharge, any action, suit or proceeding Claim or consent to the entry of any judgment (i) which does not include with respect thereto, except in the case of any settlement that includes as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee indemnified party of a written release from all liability in respect of such actionClaim. In addition, suit whether or proceeding or (ii) for other than monetary damages to be borne by not the indemnifying party shall have assumed the defense of the Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, any Claim or consent to the entry of any judgment with respect thereto, without the prior written consent of the Indemnitee, indemnifying party (which consent shall not be unreasonably withheldwithheld or delayed), and the indemnifying party will not be subject to any liability for any such admission, settlement, compromise, discharge or consent to judgment made by an indemnified party without such prior written consent of the indemnifying party.
(d) The indemnifying party and the indemnified party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Article VII, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information.
Appears in 1 contract
Third Party Indemnification. The obligations obligation of an Indemnitor Buyer to --------------------------- indemnify the Seller Indemnitees under this Article VIII hereof with respect to Damages Section 4(a) hereof, in each case resulting from the assertion of liability a Claim by a third parties party (each, as the case may be, a "Third Party Claim"), will shall be further subject to the following terms and conditions:
(ai) Any party against whom any Third Party Claim is asserted will shall give the Indemnitor party required to provide indemnity hereunder written notice of any such Third Party Claim promptly after learning of such Third Party Claim, and the Indemnitor indemnifying party may at its option undertake the defense thereof with counsel chosen by representatives it but reasonably satisfactory to the indemnified party. Failure to give prompt notice of its own choosinga Third Party Claim hereunder shall not affect the indemnifying party's obligations under this Section 4, except to the extent the indemnifying party is materially prejudiced by such failure to give prompt notice. If the Indemnitorindemnifying party, within thirty (30) 30 days after notice of any such Third Party Claim, or such shorter period as is reasonably required, fails to assume the defense of such Third Part Claim, the Seller Indemnitee against whom such claim Third Party Claim has been made will (upon further notice to Indemnitor) shall have the right right, but shall not be obligated, to undertake the defense, compromise or settlement of such claim Third Party Claim on behalf of and for the account and risk, and at the expense, of the Indemnitor, subject to the right of the Indemnitor to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereofindemnifying party.
(bii) Anything in this Section 8.5 4(b) to the contrary, contrary notwithstanding, an Indemnitor the indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (iA) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Seller Indemnitee of a written release from all liability in respect of such action, suit or proceeding proceeding, or (iiB) for other than monetary damages to be borne by the indemnifying party without the prior written consent of the Seller Indemnitee, which consent shall not be unreasonably withheld.
Appears in 1 contract
Third Party Indemnification. The obligations of an Indemnitor the Sellers, the Purchaser (as applicable, the "INDEMNIFYING PARTY") to indemnify Indemnitees Indemnified Parties under this Article VIII hereof Section 11.1 or Section 11.2 hereof, respectively, with respect to Damages resulting from the assertion of liability by third parties (each, as the case may be, a "ClaimCLAIM"), will shall be subject to the following terms and conditions:
(a) Any 11.4.1 Promptly after receipt by an Indemnified Party of notice by a third party against whom any Claim is asserted will give the Indemnitor written notice of any complaint or the commencement of any action or proceeding with respect to which such Claim promptly after learning Indemnified Party may be entitled to receive payment from the other party for Damages, such Indemnified Party shall, within ten (10) days, notify the Sellers, the Purchaser as the appropriate Indemnifying Party, of such Claimcomplaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the Indemnitor extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim. In addition, the Indemnified Party shall provide to the Indemnifying Party as promptly as practicable thereafter such information and documentation as may be reasonably requested by the Indemnifying Party to support and verify the claim asserted, so long as such disclosure would not violate the attorney-client privilege of the Indemnified Party. The Indemnifying Party may at its option undertake the defense thereof by representatives of its own choosing; provided, that any Indemnified Party may, in any event, at its own expense, monitor and participate in, but not control, the defense of such claim. If the Indemnitor, Indemnifying Party within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required, Claim fails to assume the defense of such Claim, the Indemnitee against whom such claim has been made Indemnified Parties will (upon further notice to Indemnitorthe Indemnifying Party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk, and at the expense, of the IndemnitorIndemnifying Party; provided, subject to however, that as long as the right of Indemnifying Party is reasonably contesting any claim in good faith, the Indemnitor to assume the defense of Indemnified Parties shall not pay or settle any such Claim at any time prior to settlement, compromise or final determination thereofclaim.
(b) 11.4.2 Anything in this Section 8.5 11.4 to the contrary, contrary notwithstanding, an Indemnitor the Indemnifying Party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (ia) which does not include as an unconditional term thereof hereof the delivery by the claimant or plaintiff to the Indemnitee Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding proceeding; or (iib) for other than monetary damages to be borne by the indemnifying party without the prior written consent of the IndemniteeIndemnifying Party, which consent shall not be unreasonably withheldwithheld or delayed.
Appears in 1 contract
Third Party Indemnification. The obligations of an Indemnitor Seller to indemnify the Buyer Indemnitees under Section 10.2 of this Article VIII hereof Agreement with respect to Buyer Damages and the obligations of Buyer to indemnify the Seller Indemnitees under Section 10.3 of this Agreement with respect to Seller Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a "Claim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the Indemnitor indemnifying party written notice of any such Claim promptly after learning of such Claim, and the Indemnitor may indemnifying party may, at its option option, undertake the defense thereof of such Claim by representatives of its own choosing. Failure to give prompt notice of a Claim under this Agreement shall not affect the indemnifying party obligations under this Article X, except to the extent the indemnifying party is materially prejudiced by such failure to give prompt notice. If the Indemnitorindemnifying party, within thirty (30) 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such claim Claim has been made will (upon further notice to Indemnitorthe indemnifying party) have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk, and at the expense, of the Indemnitorindemnifying party, subject to the right of the Indemnitor indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereofof such Claim.
(b) Anything in this Section 8.5 10.4 to the contrary, contrary notwithstanding, an Indemnitor the indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (i) which does not include as an unconditional term thereof of the delivery by the claimant or plaintiff to the Seller Indemnitee or the Buyer Indemnitee, as the case may be, of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to be borne by the indemnifying party party, without the prior written consent of the Seller Indemnitee or the Buyer Indemnitee, as the case may be, which consent shall not be unreasonably withheld.
(c) The indemnifying party and the indemnified party shall cooperate fully in all aspects of any investigation, defense, pretrial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought under this Article X, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information.
Appears in 1 contract
Third Party Indemnification. The obligations of an Indemnitor PM Holdings to indemnify the TCW Indemnitees under this Article VIII Section 8.2 hereof with respect to Damages TCW Damages, and of TCW/EMCO Holding to indemnify PM Holdings under Section 8.3 hereof with respect to PM Damages, in either case resulting from the any assertion of liability by third parties parties, whether pursuant to any investigation, regulatory or governmental proceeding, legal action or other dispute (each, as the case may be, a "Claim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted (the "Indemnified Party") will give the Indemnitor other party (the "Indemnifying Party") written notice of any such Claim promptly after learning of such Claim, and the Indemnitor Indemnifying Party may at its option undertake the defense thereof by representatives of its own choosing. Failure of the Indemnified Party to give prompt notice of a Claim hereunder shall not affect the Indemnifying Party's obligations under this Section 8.4(a), except to the extent the Indemnifying Party is materially prejudiced by such failure to give prompt notice. If the IndemnitorIndemnifying Party, within thirty (30) seven days after notice of any such Claim, Claim or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Indemnitee Indemnified Party against whom such claim has been made will (upon no further notice to Indemnitorthe Indemnifying Party) have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk, and at the expense, of the IndemnitorIndemnifying Party, subject to the right of the Indemnitor Indemnifying Party, to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof.
(b) Anything Notwithstanding anything in this Section 8.5 8.4 to the contrary, notwithstanding, an Indemnitor the Indemnifying Party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (i) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee Indemnified Party of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to be borne by the indemnifying party Indemnifying Party, without the prior written consent of the IndemniteeIndemnified Party, which consent shall not be unreasonably withheld.
(c) TCW/EMCO Holding and PM Holdings shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Article VIII, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information.
Appears in 1 contract
Samples: Stock Purchase Agreement (Phoenix Companies Inc/De)
Third Party Indemnification. The obligations of an Indemnitor the Seller to indemnify the Buyer Indemnitees under this Article VIII hereof Section 7.2 with respect to Buyer Damages and the obligations of the Buyer to indemnify the Seller Indemnitees under Section 7.3 with respect to Seller Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a "“Claim"”), will shall be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will shall give the Indemnitor indemnifying party written notice of any such Claim promptly after learning of such Claim, and the Indemnitor may indemnifying party may, at its option option, undertake the defense thereof of such Claim by representatives of its own choosing. Failure to give prompt notice of a Claim under this Agreement shall not affect the indemnifying party’s obligations under this Article 7, except to the extent the indemnifying party is materially prejudiced by such failure to give prompt notice. If the Indemnitorindemnifying party, within thirty (30) 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such claim Claim has been made will shall (upon further notice to Indemnitorthe indemnifying party) have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk, and at the expense, of the Indemnitorindemnifying party, subject to the right of the Indemnitor indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof.of such Claim;
(b) Anything in this Section 8.5 7.4 to the contrary, contrary notwithstanding, an Indemnitor the indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (i) which that does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Seller Indemnitee or the Buyer Indemnitee, as the case may be, of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to be borne by the indemnifying party party, without the prior written consent of the Seller Indemnitee or the Buyer Indemnitee, as the case may be, which consent shall not be unreasonably withheld. The indemnified party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment; and
(c) The indemnifying party and the indemnified party shall cooperate fully in all aspects of any investigation, defense, pretrial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought under this Article 7, including by providing the other party with reasonable access to employees and officers (including as witnesses) and other information.
Appears in 1 contract
Third Party Indemnification. The obligations of an Indemnitor any indemnifying party to indemnify Indemnitees any indemnified party under this Article VIII hereof VII with respect to Purchaser Damages or Seller Damages, as the case may be, resulting from the assertion of liability by third parties (a "Claim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the Indemnitor party required to provide indemnity hereunder written notice of any such Claim promptly after learning of such Claim, and the Indemnitor indemnifying party may at its option undertake the defense thereof by representatives of its own choosing. Failure to give prompt notice of a Claim hereunder shall not affect the indemnifying party's obligations under this Section 7.4, except to the extent that the indemnifying party is materially prejudiced by such failure to give prompt notice. If the Indemnitorindemnifying party, within thirty (30) 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Indemnitee indemnified party against whom such claim Claim has been made will (upon further notice to Indemnitorthe indemnifying party) have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk, and at the expense, of the Indemnitorindemnifying party, subject to the right of the Indemnitor indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof.
(b) Anything in this Section 8.5 7.4 to the contrary, contrary notwithstanding, an Indemnitor the indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (i) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to be borne by the indemnifying party without the prior written consent of the Indemniteeindemnified party, which consent shall not be unreasonably withheld.
Appears in 1 contract
Samples: Purchase Agreement (Ferrellgas Partners Finance Corp)
Third Party Indemnification. The obligations In the case of an Indemnitor to indemnify Indemnitees under this Article VIII hereof with respect to Damages resulting from the assertion of liability by third parties (a "“Claim"), will be subject “) for which Buyer or Seller intends to the following terms and conditionsseek indemnification hereunder:
(a) Any party against whom any Claim is asserted will give the Indemnitor party required to provide indemnity hereunder written notice of any such Claim promptly after learning of such Claim, and the Indemnitor indemnifying party may at its option undertake the defense thereof by representatives of its own choosing. If Failure to give prompt notice of a Claim hereunder shall not affect the Indemnitorindemnifying party’s obligations under this Section 7.4, except to the extent that the indemnifying party is actually prejudiced by such failure to give prompt notice. Notwithstanding the foregoing, in the event that a Claim is made against both the indemnifying party and the indemnified party, and the indemnified party determines in good faith that there exists a conflict of interest such that joint representation would not be appropriate, the indemnified party (upon further notice to the indemnifying party) shall have the right to undertake the defense and, subject to Section 7.4(b), any compromise or settlement of such claim. In addition, if the indemnifying party, within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Indemnitee indemnified party against whom such claim has been made will (upon further notice to Indemnitorthe indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk, and at the expense, of the Indemnitorindemnifying party, subject to the right of the Indemnitor indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof.
(b) Anything in this Section 8.5 7.4 to the contrary, contrary notwithstanding, an Indemnitor (i) the indemnified party shall not settle a claim for which it is indemnified without the prior written consent of the indemnifying party, which consent shall not be unreasonably withheld, and (ii) the indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (i) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to be borne by the indemnifying party without the prior written consent of the Indemniteeindemnified party, which consent shall not be unreasonably withheld.
Appears in 1 contract
Third Party Indemnification. The obligations of an Indemnitor Molfetta and the Trust to indemnify the Buyer Indemnitee under Section 7.2 and the obligations of the Buyer to indemnify the Seller Indemnitees under this Article VIII hereof with respect to Damages Section 7.3 hereof, in each case resulting from the assertion of liability by a third parties party (each, as the case may be, a "“Claim"”), will shall be further subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will shall give the Indemnitor party (or the parties) required to provide indemnity hereunder written notice of any such Claim promptly after learning of such Claim, and the Indemnitor may indemnifying party may, at its option option, undertake the defense thereof with counsel chosen by representatives it but reasonably satisfactory to the indemnified party. Failure to give prompt notice of its own choosinga Claim hereunder shall not affect the indemnifying party’s obligations under this Section 7.4, except to the extent the indemnifying party is materially prejudiced by such failure to give prompt notice. If the Indemnitorindemnifying party, within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Buyer Indemnitee or the Seller Indemnitee, as the case may be (each, an “Indemnitee”), against whom such claim Claim has been made will (upon further notice to Indemnitor) shall have the right right, but shall not be obligated, to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk, and at the expense, of the Indemnitor, subject to the right of the Indemnitor to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereofindemnifying party.
(b) Anything in this Section 8.5 7.4 to the contrary, contrary notwithstanding, an Indemnitor the indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (iA) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release from all liability in respect of such action, suit or proceeding proceeding, or (iiB) for other than monetary damages to be borne by the indemnifying party without the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld.
Appears in 1 contract
Third Party Indemnification. The obligations of an Indemnitor PII to indemnify the Buyer Indemnitees under Section 7.2 of this Article VIII hereof Agreement with respect to Buyer Damages and the obligations of the Buyer to indemnify the Seller Indemnitees under Section 7.3 of this Agreement with respect to Seller Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a "“Claim"”), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the Indemnitor indemnifying party written notice of any such Claim promptly after learning of such Claim, and the Indemnitor may indemnifying party may, at its option option, undertake the defense thereof of such Claim by representatives counsel of its own choosing; provided that such counsel is not reasonably objected to by the indemnified party. Failure to give prompt notice of a Claim under this Agreement shall not affect the indemnifying party’s obligations under this Article VII, except to the extent the indemnifying party is materially prejudiced by such failure to give prompt notice. If the Indemnitorindemnifying party, within thirty (30) 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such claim Claim has been made will (upon further notice to Indemnitorthe indemnifying party) have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk, and at the expense, of the Indemnitor, subject to the right of the Indemnitor to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereofindemnifying party.
(b) Anything in this Section 8.5 7.4 to the contrary, contrary notwithstanding, an Indemnitor the indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (i) which that does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Seller Indemnitee or the Buyer Indemnitee, as the case may be, of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to be borne by the indemnifying party party, without the prior written consent of the Seller Indemnitee or the Buyer Indemnitee, as the case may be, which consent shall not be unreasonably withheld.
(c) The indemnifying party and the indemnified party shall cooperate fully in all aspects of any investigation, defense, pretrial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought under this Article VII, including by providing the other party with reasonable access to employees and officers (including as witnesses) and other information.
Appears in 1 contract
Third Party Indemnification. The obligations Except as provided in Section 5.15 of an Indemnitor to indemnify Indemnitees under this Article VIII hereof Agreement with respect to the Selected Litigation Matters, the obligations of Sellers to indemnify the Buyer Indemnitees under Section 8.2 of this Agreement with respect to Buyer Damages and the obligations of Buyer to indemnify the Seller Indemnitees under Section 8.3 of this Agreement with respect to Seller Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a "“Claim"”), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the Indemnitor indemnifying party written notice of any such Claim promptly after learning of such Claim, and the Indemnitor may indemnifying party may, at its option option, undertake the defense thereof of such Claim by representatives of its own choosing; provided, however, that (i) such party shall have first reasonably demonstrated its financial ability to provide full indemnification to the indemnified party, and (ii) the indemnifying party may not undertake the defense of Claims solely related to or seeking non-monetary relief or Claims that solely involve criminal allegations or Claims for which the indemnified party demonstrates, to the reasonable satisfaction of the indemnifying party, that an adverse determination with respect to such Claim would be materially adverse to its business, assets, financial condition, results of operations or operations (in each case, taken as a whole), unless the indemnified party does not defend, contest or settle such Claim, then the indemnifying party may contest and defend (but not settle) such claim. Failure to give prompt notice of a Claim under this Agreement shall not affect the indemnifying party’s obligations under this Article VIII, except to the extent the indemnifying party is materially prejudiced by such failure to give prompt notice. Notice of intention so to contest and defend shall be given by the indemnifying party to the indemnified party within 20 business days after the indemnified party provides a notice of Claim (but in all events, at least five business days prior to the date that an answer to such Claim is due to be filed). If the Indemnitor, within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required, 62 indemnifying party fails to assume the defense of such ClaimClaim within the required time period, the Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such claim Claim has been made will (upon further notice to Indemnitorthe indemnifying party) have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk, and at the expense, of the Indemnitorindemnifying party, subject to the right of the Indemnitor indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination of such Claim. If the indemnifying party assumes such defense, the Buyer Indemnitee or the Seller Indemnitee, as the case may be, shall have the right to participate in the defense thereof and to employ counsel, at its own expense (which expense shall not constitute a Buyer Damage or Seller Damage, as applicable, unless the Buyer Indemnitee or the Seller Indemnitee, as the case may be, reasonably determines that because of a conflict of interest, the indemnifying party may not adequately represent, any interests of the Buyer Indemnitee or the Seller Indemnitee, as the case may be or unless the indemnifying party has not employed counsel to assume the defense of such action within a reasonable time, and only to the extent that such expenses are reasonable), separate from the counsel employed by the Buyer Indemnitee or the Seller Indemnitee, it being understood, however, that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the Buyer Indemnitee or the Seller Indemnitee, as the case may be, for any period during which the indemnifying party has not assumed the defense thereof.
(b) Anything in this Section 8.5 8.4 to the contrary, contrary notwithstanding, an Indemnitor the indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (i) which does not include as an unconditional term thereof of the delivery by the claimant or plaintiff to the Seller Indemnitee or the Buyer Indemnitee, as the case may be, of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to be borne by the indemnifying party party, without the prior written consent of the Seller Indemnitee or the Buyer Indemnitee, as the case may be, which consent shall not be unreasonably withheld.
(c) The indemnifying party and the Seller Indemnitee or Buyer Indemnitee, as applicable, shall provide each other such cooperation as may be reasonably requested and at the expense of the indemnifying party in all aspects of any investigation, defense, pretrial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought under this Article VIII, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information.
(d) Buyer shall not be deemed to have notice of any claim or breach by the Sellers of any representation, warranty, covenant or agreement under this Agreement by virtue of knowledge acquired on or prior to the date of the Closing by an employee of any Company or Subsidiary. In addition to the limitations set forth in Sections 8.2(b)(ii) and 8.3(b)(ii) above, any indemnification hereunder shall be calculated after deduction of or for (i) amounts actually paid to the indemnified party or, if such indemnified party is Buyer, to the Company, under any insurance policies in respect of the Buyer Damages or Seller Damages, as applicable, net of any costs incurred by the indemnified party to obtain such amount or as a result of receiving such amount; and (ii) any net Tax benefit to the indemnified party or any of its affiliates, or in the event the indemnified party is the Company, the Company or any of its affiliates, to the extent actually realized by such party as a direct result of such Buyer Damages or Seller Damages, including the present value, determined by discounting at 10.5%, of the benefit arising from an increase in the Tax basis of assets, net of any Tax costs incurred by the indemnified party or the Company as the result of the receipt of indemnification payments hereunder, including the present value, determined by discounting at the applicable federal rate, of the costs arising from a reduction in the Tax basis of the assets. In calculating the amount of net Tax benefit, the indemnified party and its affiliates and the Company and its affiliates shall be presumed to pay Taxes at a 37.5% Tax rate. Buyer and Sellers’ Representative shall provide the other, as applicable, with such documentation as may be reasonably requested by the other in order to ascertain or confirm the amount of any net Tax benefit or net Tax cost referred to herein.
Appears in 1 contract
Samples: Stock Purchase Agreement
Third Party Indemnification. The obligations of an Indemnitor any indemnifying party under Sections 9.2 or 9.3 (the "Indemnifying Party") to indemnify Indemnitees any indemnified party (the "Indemnified Party") under this Article VIII hereof IX with respect to Buyer Damages or Sellers Damages, as the case may be, resulting from the assertion of liability Liability by a third parties party (a "Claim"), will shall be subject to the following terms and conditions:
(a) Any party against whom which any Claim is asserted will shall give the Indemnitor party required to provide indemnity hereunder written notice of any such Claim promptly after learning of such Claim, and the Indemnitor Indemnifying Party may at its option undertake the defense thereof by representatives of its own choosing, provided, that, before the Indemnifying Party assumes control of such defense it must first: enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party shall be fully responsible (with no reservation of any rights other than the right to be subrogated to the rights of the Indemnified Party) for all Damages relating to such Claim and unconditionally guarantees the payment of any Liability resulting therefrom; and furnish the Indemnified Party with reasonable evidence that the Indemnifying Party is and will be able to satisfy any such Liability. Failure to give prompt notice of a Claim hereunder shall not relieve the Indemnifying Party from any obligation under this Article IX, except to the extent that the Indemnifying Party is materially prejudiced by such failure to give prompt notice. If the IndemnitorIndemnifying Party, within thirty (30) 15 days after receiving written notice of any such Claim, or such shorter period as is reasonably required, fails to adequately assume the defense of such ClaimClaim (by 120 either notifying the Indemnified Party thereof, failing to taking action within prescribed time periods in defense of such Claim or otherwise), the Indemnitee Indemnified Party against whom which such claim Claim has been made will shall (upon further written notice to Indemnitorthe Indemnifying Party) have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk, and at the expense, of the IndemnitorIndemnifying Party, subject without obtaining the consent of the Indemnifying Party and the Indemnifying Party shall be responsible for the costs, fees and expenses of counsel to the right of Indemnified Party in connection therewith. The Indemnified Party shall reasonably cooperate with the Indemnitor to assume the defense of such Claim at Indemnifying Party in connection with any time prior to settlement, compromise or final determination thereofClaim.
(b) Anything in this Section 8.5 9.4(a) to the contrarycontrary notwithstanding:
(i) if any Claim involves solely the recovery of a sum of money (and does not seek injunctive or other equitable relief); or involves the recovery of any combination of money, notwithstandingon the one hand, and seeks injunctive or other equitable relief, on the other, or the Indemnified Party reasonably believes that an Indemnitor adverse determination of such Claim could be detrimental to or injure the Indemnified Party's reputation or future business prospects and notifies the Indemnified Party of such belief; the Indemnifying Party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (i) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to be borne by the indemnifying party without the prior written consent of the IndemniteeIndemnified Party, which consent shall not be unreasonably withheldwithheld or delayed. In the event the Indemnifying Party receives a bona fide settlement proposal or compromise which includes provisions that would bind the Indemnified Party other than with respect to the payment of monetary damages, or which the Indemnified Party reasonably believes could be detrimental to or injure its reputation or future business prospects, and in either such case which the Indemnifying Party, in good faith reasonably believes would not have an adverse effect on the Indemnified Party, if such settlement or compromise is acceptable to the Indemnifying Party but the non-monetary portion of such compromise or settlement is not acceptable to the Indemnified Party (acting reasonably and without delay), the Indemnified Party must either accept such settlement or compromise or continue the defense of any such matter for its own account, and the costs and expense of such defense from and after the date that the Indemnifying Party notified the Indemnified Party of the terms of such settlement or compromise as well as any Losses and Damages in excess of the amount which the Indemnifying Party would have borne had the settlement proposed by the Indemnifying Party been accepted, shall be for the account of the Indemnified Party; provided that Indemnifying Party shall pay to 121 the Indemnified Party the full amount of such proposed monetary settlement at the time the Indemnified Party assumes such defense;
(ii) if any Claim solely seeks injunctive or other equitable relief, the Indemnifying Party shall not be entitled to have, and the Indemnified Party shall, subject to the Indemnifying Party's rights pursuant to Section 9.4(a), have the sole right to undertake the defense thereof by representatives of its own choosing by notifying the Indemnifying Party of such election together with its initial notice of the Claim pursuant to Section 9.4;
(iii) No Indemnifying Party shall settle or compromise or consent to the entry of any judgment with respect to any Claim unless such settlement, compromise or consent includes an unconditional written release of the Indemnified Party from all Liability arising out of such Claim.
(c) Notwithstanding Section 9.4(b) above; (i) the Indemnified Party will be entitled to participate in the defense of any Claim and employ counsel of its choice for such purpose at its own expense, beginning five days subsequent to the date upon which the Indemnified Party notified the Indemnifying Party of the existence of such Claim (ii) the Indemnifying Party will not be entitled to assume control of the defense of such Claim and shall enter into a joint defense agreement with the Indemnified Party and will pay the reasonable fees and expenses of legal counsel retained by the Indemnified Party, if the Indemnified Party reasonably believes that there exists or could arise a conflict of interest which, under applicable principles of legal ethics, could prohibit a single legal counsel from representing both the Indemnified Party and the Indemnifying Party in such Claim, and (iii) the Indemnifying Party will not be entitled to assume control of the defense of such Claim, and will pay the reasonable fees and expenses of legal counsel retained by the Indemnified Party, if a court of competent jurisdiction rules that the Indemnifying Party has failed or is failing to prosecute or defend vigorously such Claim.
Appears in 1 contract
Samples: Purchase Agreement (Revlon Inc /De/)
Third Party Indemnification. The Except with respect to Tax matters governed by Section 4.7, the obligations of an Indemnitor the Seller to indemnify the Buyer Indemnitees under this Article VIII Section 7.2 hereof with respect to Buyer Damages and the obligations of the Buyer to indemnify the Seller Indemnitees under Section 7.3 with respect to Seller Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a "Third-Party Claim"), will be subject to the following terms and conditions:
(a) Any party against whom any Third-Party Claim is asserted will give the Indemnitor indemnifying party written notice of any such Third-Party Claim promptly after learning of such Third-Party Claim, and the Indemnitor indemnifying party may at its option undertake the defense thereof by representatives of its own choosing. Failure to give prompt notice of a Third-Party Claim hereunder shall not affect the indemnifying party's obligations under this Article VII, except to the extent the indemnifying party is materially prejudiced by such failure to give prompt notice. If the Indemnitorindemnifying party, within thirty (30) 30 days after notice of any such Third-Party Claim, or such shorter period as is reasonably required, fails to assume the defense of such Third-Party Claim, the Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such claim has been made will (upon further notice to Indemnitorthe indemnifying party) have the right to undertake the defense, compromise or settlement (subject to the terms of Section 7.4(c)) of such claim on behalf of and for the account and risk, and at the expense, of the Indemnitorindemnifying party, subject to the right of the Indemnitor indemnifying party to assume the defense of such Third-Party Claim at any time prior to settlement, compromise or final determination thereof.
(b) Anything So long as the indemnifying party has assumed the defense of any Third-Party Claim in this the manner set forth above and in a good faith and diligent manner, the indemnifying party shall have the exclusive right to contest, defend and litigate such Third-Party Claim and, except as expressly provided in Section 8.5 7.4(c), shall have the exclusive right, in its sole discretion, to settle any such claim, either before or after the initiation of litigation at such time and on such terms as the indemnifying party deems appropriate. If the indemnifying party elects not to assume the defense of any such Third-Party Claim (which shall be without prejudice to its right at any time to assume subsequently such defense), the indemnifying party will nonetheless be entitled, at its own expense, to participate in such defense. The indemnified party shall have the right to participate, with separate counsel (which counsel shall act in an advisory capacity only), in any such contest, defense, litigation or settlement conducted by the indemnifying party. After notice from the indemnifying party to such indemnified party of the indemnifying party's election to assume the defense of such Third-Party Claim, the indemnifying party will not be liable to such indemnified party for any expenses of the indemnified party's counsel that are subsequently incurred in connection with the defense thereof; provided, however, that the expense of such -------- ------- indemnified party's counsel shall be paid by the indemnifying party if (i) the indemnifying party requested such separate counsel to participate or (ii) in the reasonable opinion of counsel to the contraryindemnified party, notwithstandinga significant conflict of interest exists between the indemnifying party, an Indemnitor on the one hand, and the indemnified party, on the other hand, that would make such separate representation clearly advisable.
(c) Without the prior written consent of the indemnified party (which consent shall not enter into be unreasonably withheld or delayed), the indemnifying party shall not admit any settlement liability with respect to, or settle, compromise of or discharge, any action, suit or proceeding Third-Party Claim or consent to the entry of any judgment (i) which does not include with respect thereto, except in the case of any settlement that includes as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee indemnified party of a written release from all liability in respect of such actionThird-Party Claim. In addition, suit whether or proceeding or (ii) for other than monetary damages to be borne by not the indemnifying party shall have assumed the defense of the Third-Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, any Third-Party Claim or consent to the entry of any judgment with respect thereto, without the prior written consent of the Indemnitee, indemnifying party (which consent shall not be unreasonably withheldwithheld or delayed), and the indemnifying party will not be subject to any liability for any such admission, settlement, compromise, discharge or consent to judgment made by an indemnified party without such prior written consent of the indemnifying party.
(d) Upon execution of this Agreement and delivery of the Company Disclosure Schedule, the Seller shall be deemed to have satisfied the notice requirement of Section 7.4(a) with respect to all matters set forth in Section 2.8 of the Company Disclosure Schedule.
(e) The indemnifying party and the indemnified party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Article VII, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ralcorp Holdings Inc /Mo)
Third Party Indemnification. The obligations of an Indemnitor the --------------------------- Seller to indemnify the Buyer Indemnitees under this Article VIII Section 7.2 hereof with respect to Buyer Damages and the obligations of the Buyer to indemnify the Seller Indemnitees under Section 7.3 with respect to Seller Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a "Claim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the Indemnitor indemnifying party written notice of any such Claim promptly after learning of such Claim, and the Indemnitor indemnifying party may at its option undertake the defense thereof by representatives of its own choosing. Failure to give prompt notice of a Claim hereunder shall not affect the indemnifying party obligations under this Article VII, except to the extent the indemnifying party is materially prejudiced by such failure to give prompt notice. If the Indemnitorindemnifying party, within thirty (30) 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such claim has been made will (upon further notice to Indemnitorthe indemnifying party) have the right to undertake the defense, compromise or settlement (subject to the terms of Section 7.4(c)) of such claim on behalf of and for the account and risk, and at the expense, of the Indemnitorindemnifying party, subject to the right of the Indemnitor indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof.
(b) Anything So long as the indemnifying party has assumed the defense of any Claim in this the manner set forth above, the indemnifying party shall have the exclusive right to contest, defend and litigate such Claim and, except as expressly provided in Section 8.5 7.4(c), shall have the exclusive right, in its sole discretion, to settle any such claim, either before or after the initiation of litigation at such time and 45 on such terms as the indemnifying party deems appropriate. If the indemnifying party elects not to assume the defense of any such Claim (which shall be without prejudice to its right at any time to assume subsequently such defense), the indemnifying party will nonetheless be entitled, at its own expense, to participate in such defense. The indemnified party shall have the right to participate, with separate counsel (which counsel shall act in an advisory capacity only), in any such contest, defense, litigation or settlement conducted by the indemnifying party. After notice from the indemnifying party to such indemnified party of the indemnifying party's election to assume the defense of such Claim, the indemnifying party will not be liable to such indemnified party for any expenses of the indemnified party's counsel that are subsequently incurred in connection with the defense thereof; provided, however, that the -------- ------- expense of such indemnified party's counsel shall be paid by the indemnifying party if (i) the indemnifying party requested such separate counsel to participate or (ii) in the reasonable opinion of counsel to the contraryindemnified party, notwithstandinga significant conflict of interest exists between the indemnifying party, an Indemnitor on the one hand, and the indemnified party, on the other hand, that would make such separate representation clearly advisable.
(c) Without the prior written consent of the indemnified party (which consent shall not enter into be unreasonably withheld or delayed), the indemnifying party shall not admit any settlement liability with respect to, or settle, compromise of or discharge, any action, suit or proceeding Claim or consent to the entry of any judgment (i) which does not include with respect thereto, except in the case of any settlement that includes as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee indemnified party of a written release from all liability in respect of such actionClaim. In addition, suit whether or proceeding or (ii) for other than monetary damages to be borne by not the indemnifying party shall have assumed the defense of the Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, any Claim or consent to the entry of any judgment with respect thereto, without the prior written consent of the Indemnitee, indemnifying party (which consent shall not be unreasonably withheldwithheld or delayed), and the indemnifying party will not be subject to any liability for any such admission, settlement, compromise, discharge or consent to judgment made by an indemnified party without such prior written consent of the indemnifying party.
(d) Upon execution of this Agreement and delivery of the Seller Disclosure Schedule, the Seller shall be deemed to have satisfied the notice requirement of Section 7.4(a) with respect to all matters set forth in Section 2.8 of the Seller Disclosure Schedule.
(e) The indemnifying party and the indemnified party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Article VII, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information.
Appears in 1 contract
Samples: Exchange Agreement (Ticketmaster Online Citysearch Inc)
Third Party Indemnification. The obligations of an Indemnitor the Stockholders to indemnify the Buyer Indemnitees under this Article VIII Section 7.2 hereof with respect and the obligations of TBNA, TBFS and the Surviving Corporation to Damages indemnify the Seller Indemnitees under Section 7.3 hereof, in each case resulting from the assertion of liability by a third parties party (each, as the case may be, a "“Claim"”), will shall be further subject to the following terms and conditions:
(ai) Any party against whom any Claim is asserted will shall give the Indemnitor party (or the parties) required to provide indemnity hereunder written notice of any such Claim promptly after learning of such Claim, and the Indemnitor may indemnifying party may, at its option option, undertake the defense thereof with counsel chosen by representatives it but reasonably satisfactory to the indemnified party. Failure to give prompt notice of its own choosinga Claim hereunder shall not affect the indemnifying party’s obligations under this Section 7.4. If the Indemnitorindemnifying party, within thirty twenty (3020) days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Buyer Indemnitee or the Seller Indemnitee, as the case may be, (each, an “Indemnitee”), against whom such claim Claim has been made will (upon further notice to Indemnitor) shall have the right right, but shall not be obligated, to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk, and at the expense, of the Indemnitor, subject to the right of the Indemnitor to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereofindemnifying party.
(bii) Anything in this Section 8.5 7.4 to the contrary, contrary notwithstanding, an Indemnitor the Indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (iA) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release from all liability in respect of such action, suit or proceeding proceeding, or (iiB) for other than monetary damages to be borne by the indemnifying party without the prior written consent of the Indemnitee. Notwithstanding the foregoing provisions of Article 7, which consent shall no claim for damages may be asserted by an Indemnitee in the event the Indemnitee had actual knowledge of a breach of a representation or warranty on or prior to the Effective Time and did not be unreasonably withhelddisclose such breach to the other Indemnitee on or prior to the Effective Time.
Appears in 1 contract
Samples: Acquisition Agreement and Plan of Merger (Team Financial Inc /Ks)
Third Party Indemnification. The obligations of an Indemnitor the Seller to indemnify the Buyer Indemnitees under this Article VIII hereof Section 9.2 with respect to Buyer Damages and the obligations of the Buyer to indemnify the Seller Indemnitees under Section 9.3 with respect to Seller Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a "“Claim"”), will shall be subject to the following terms and conditions:
(a) Any party Party against whom any Claim is asserted will shall give the Indemnitor indemnifying party written notice of any such Claim promptly after learning of such Claim, and the Indemnitor may indemnifying party may, at its option option, undertake the defense thereof of such Claim by representatives of its own choosing. Failure to give prompt notice of a Claim under this Agreement shall not affect the indemnifying party’s obligations under this Article IX, except to the extent the indemnifying party is materially prejudiced by such failure to give prompt notice. If the Indemnitorindemnifying party, within thirty (30) 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such claim Claim has been made will shall (upon further notice to Indemnitorthe indemnifying party) have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk, and at the expense, of the Indemnitor, subject to the right of the Indemnitor to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereofindemnifying party.
(b) Anything in this Section 8.5 9.4 to the contrary, contrary notwithstanding, an Indemnitor the indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (i) which that does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Seller Indemnitee or the Buyer Indemnitee, as the case may be, of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to be borne by the indemnifying party party, without the prior written consent of the Seller Indemnitee or the Buyer Indemnitee, as the case may be, which consent shall not be unreasonably withheld. The indemnified party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment.
(c) The indemnifying party and the indemnified party shall reasonably cooperate in all aspects of any investigation, defense, pretrial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought under this Article IX, including by providing the other Party with reasonable access to employees and officers (including as witnesses) and other information.
Appears in 1 contract
Third Party Indemnification. The obligations of an Indemnitor Seller (or, if Seller shall be wound-up and dissolved or shall otherwise cease to exist or shall otherwise fail to satisfy its obligations hereunder, the obligations of the Seller Shareholders) to indemnify Indemnitees the Buyer Indemnities under this Article VIII Section 9.2 hereof on the one hand, or PRT and Buyer to Indemnify the Seller Indemnities or the Seller Shareholders under Section 9.3 hereof with respect to Buyer Damages or Seller Damages, as the case may be, resulting from the assertion of liability by third parties (a "Claim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the Indemnitor party required to provide indemnity hereunder written notice of any such Claim promptly after learning of such Claim, and the Indemnitor indemnifying party may at its option undertake the defense thereof thereof, at its own expense, by representatives of its own choosing. Failure to give prompt notice of a Claim hereunder shall not affect the indemnifying party's obligations under this Section 9.3, except to the extent the indemnifying party is materially prejudiced by such failure to give prompt notice. If the Indemnitorindemnifying party, within thirty (30) 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Buyer Indemnitee or Seller Indemnitee, as the case may be, against whom such claim has been made will (upon further notice to Indemnitorthe indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk, and at the expense, of the Indemnitorindemnifying party, subject to the right of the Indemnitor indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof.
(b) Anything in this Section 8.5 9.4 to the contrary, contrary notwithstanding, an Indemnitor the indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (i) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Buyer Indemnitee or Seller Indemnitee, as the case may be, of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to be borne by the indemnifying party without the prior written consent of the Buyer Indemnitee or Seller Indemnitee, as the case may be, which consent shall not be unreasonably withheld.
Appears in 1 contract
Third Party Indemnification. The obligations of an Indemnitor the Parent, AIFI, AMI and ADI to indemnify the Buyer Indemnitees under this Article VIII Section 7.2 hereof with respect to Buyer Damages and the obligations of the Buyer to indemnify the Seller Indemnitees under Section 7.3 with respect to Seller Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a "Claim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the Indemnitor indemnifying party written notice of any such Claim promptly after learning of such Claim, and the Indemnitor indemnifying party may at its option undertake the defense thereof by representatives of its own choosing. Failure to give prompt notice of a Claim hereunder shall not affect the indemnifying party's obligations under this Article VII, except to the extent the indemnifying party is materially prejudiced by such failure to give prompt notice. If the Indemnitorindemnifying party, within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such claim has been made will (upon further notice to Indemnitorthe indemnifying party) have the right to undertake the defense, compromise or settlement (subject to the terms of Section 7.4(c)) of such claim on behalf of and for the account and risk, and at the expense, of the Indemnitorindemnifying party, subject to the right of the Indemnitor indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof.
(b) Anything So long as the indemnifying party has assumed the defense of any Claim in this the manner set forth above, the indemnifying party shall have the exclusive right to contest, defend and litigate such Claim and, except as expressly provided in Section 8.5 7.4(c), shall have the exclusive right, in its sole discretion, to settle any such claim, either before or after the contraryinitiation of litigation at such time and on such terms as the indemnifying party deems appropriate. If the indemnifying party elects not to assume the defense of any such Claim (which shall be without prejudice to its right at any time to assume subsequently such defense), notwithstandingthe indemnifying party will nonetheless be entitled, at its own expense, to participate in such defense. The indemnified party shall have the right to participate, at its own expense with separate counsel (which counsel shall act in an Indemnitor advisory capacity only), in any such contest, defense, litigation or settlement conducted by the indemnifying party. After notice from the indemnifying party to such indemnified party of the indemnifying party's election to assume the defense of such Claim, the indemnifying party will not be liable to such indemnified party for any expenses of the indemnified party's counsel that are subsequently incurred in connection with the defense thereof; provided, however, that the expense of such indemnified party's counsel shall be paid by the indemnifying party if the indemnifying party requested such separate counsel to participate.
(c) Without the prior written consent of the indemnified party (which consent shall not enter into be unreasonably withheld or delayed), the indemnifying party shall not admit any settlement liability with respect to, or settle, compromise of or discharge, any action, suit or proceeding Claim or consent to the entry of any judgment (i) which does not include with respect thereto, except in the case of any settlement that includes as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee indemnified party of a written release from all liability in respect of such actionClaim. In addition, suit whether or proceeding or (ii) for other than monetary damages to be borne by not the indemnifying party shall have assumed the defense of the Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, any Claim or consent to the entry of any judgment with respect thereto, without the prior written consent of the Indemnitee, indemnifying party (which consent shall not be unreasonably withheldwithheld or delayed), and the indemnifying party will not be subject to any liability for any such admission, settlement, compromise, discharge or consent to judgment made by an indemnified party without such prior written consent of the indemnifying party.
Appears in 1 contract
Samples: Asset Purchase Agreement (Amerihost Properties Inc)
Third Party Indemnification. The obligations of an Indemnitor the Seller and each of the Members to indemnify Indemnitees the Buyer Parties under this Article VIII Section 7.2 hereof with respect to Buyer Damages and the obligations of the Buyer to indemnify the Seller Parties under Section 7.3 with respect to Seller Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a "Claim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the Indemnitor indemnifying party written notice of any such Claim promptly after learning of such Claim, and the Indemnitor indemnifying party may at its option undertake the defense thereof by representatives of its own choosingchoosing and reasonably acceptable to the indemnified party. Failure to give prompt notice of a Claim hereunder shall not affect the indemnifying party's obligations under this Article VII, except to the extent the indemnifying party is precluded from defending the relevant Claim by such failure to give prompt notice. If the Indemnitorindemnifying party, within thirty (30) 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Indemnitee Buyer Party or the Seller Party, as the case may be, against whom such claim Claim has been made will (upon further notice to Indemnitorthe indemnifying party) have the right to undertake the defense, compromise or settlement (subject to the terms of Section 7.4(c)) of such claim Claim on behalf of and for the account and risk, and at the expense, of the Indemnitorindemnifying party, subject to the right of the Indemnitor indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof.
(b) Anything So long as the indemnifying party has assumed the defense of any Claim in this the manner set forth above, the indemnifying party shall have the exclusive right to contest, defend and litigate such Claim and, except as expressly provided in Section 8.5 7.4(c), shall have the exclusive right, in its sole discretion, to settle any such claim, either before or after the initiation of litigation at such time and on such terms as the indemnifying party deems appropriate. If the indemnifying party elects not to assume the defense of any such Claim (which shall be without prejudice to its right at any time to assume subsequently such defense), the indemnifying party will nonetheless be entitled, at its own expense, to participate in such defense. The indemnified party shall have the right to participate, with separate counsel (which counsel shall act in an advisory capacity only), in any such contest, defense, litigation or settlement conducted by the indemnifying party. After written notice from the indemnifying party to such indemnified party of the indemnifying party's election to assume the defense of such Claim, the indemnifying party will not be liable to such indemnified party for any expenses of the indemnified party's counsel that are incurred in connection with the defense thereof; provided, however, that the expense of such indemnified party's counsel shall be paid by the indemnifying party if (i) the indemnifying party requested such separate counsel to participate or (ii) in the reasonable opinion of counsel to the contraryindemnified party, notwithstandinga significant conflict of interest exists between the indemnifying party, an Indemnitor on the one hand, and the indemnified party, on the other hand, that would make such separate representation advisable.
(c) Without the prior written consent of the indemnified party (which consent shall not enter into be unreasonably withheld or delayed), the indemnifying party shall not admit any settlement liability with respect to, or settle, compromise of or discharge, any action, suit or proceeding Claim or consent to the entry of any judgment (i) which does not include with respect thereto, except in the case of any settlement that includes as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee indemnified party of a written release from all liability in respect of such actionClaim and all Claims arising therefrom or relating thereto. In addition, suit whether or proceeding or (ii) for other than monetary damages to be borne by not the indemnifying party shall have assumed the defense of the Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, any Claim or consent to the entry of any judgment with respect thereto, without the prior written consent of the Indemnitee, indemnifying party (which consent shall not be unreasonably withheldwithheld or delayed), and the indemnifying party will not be subject to any liability for any such admission, settlement, compromise, discharge or consent to judgment made by an indemnified party without such prior written consent of the indemnifying party.
(d) The indemnifying party and the indemnified party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Article VII, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information.
Appears in 1 contract
Samples: Asset Purchase Agreement (Pdi Inc)
Third Party Indemnification. The obligations obligation of an Indemnitor Seller to indemnify the Buyer Indemnitees under this Article VIII Section 7.2 hereof with respect and the obligation of the Buyer to Damages indemnify the Seller Indemnitees under Section 7.3 hereof, in each case resulting from the assertion of liability by a third parties party (each, as the case may be, a "“Claim"”), will shall be further subject to the following terms and conditions:
(ai) Any party against whom any Claim is asserted will shall give the Indemnitor party (or the parties) required to provide indemnity hereunder written notice of any such Claim promptly after learning of such Claim, and the Indemnitor may indemnifying party may, at its option option, undertake the defense thereof with counsel chosen by representatives it but reasonably satisfactory to the indemnified party. Failure to give prompt notice of its own choosinga Claim hereunder shall not affect the indemnifying party’s obligations under this Section 7.4, except to the extent the indemnifying party is materially prejudiced by such failure to give prompt notice. If the Indemnitorindemnifying party, within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Buyer Indemnitee or the Seller Indemnitee, as the case may be (each, an “Indemnitee”), against whom such claim Claim has been made will (upon further notice to Indemnitor) shall have the right right, but shall not be obligated, to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk, and at the expense, of the Indemnitor, subject to the right of the Indemnitor to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereofindemnifying party.
(bii) Anything in this Section 8.5 7.4 to the contrary, contrary notwithstanding, an Indemnitor the indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (iA) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release from all liability in respect of such action, suit or proceeding proceeding, or (iiB) for other than monetary damages to be borne by the indemnifying party without the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld.
Appears in 1 contract
Samples: Asset Purchase Agreement (Graymark Healthcare, Inc.)
Third Party Indemnification. The obligations of an Indemnitor the Sellers, the Purchaser (as applicable, the “INDEMNIFYING PARTY”) to indemnify Indemnitees Indemnified Parties under this Article VIII hereof with respect to Damages resulting from the assertion of liability by third parties (each, as the case may be, a "Claim"“CLAIM”), will shall be subject to the following terms and conditions:
(a) Any 11.4.1 Promptly after receipt by an Indemnified Party of notice by a third party against whom any Claim is asserted will give the Indemnitor written notice of any complaint or the commencement of any action or proceeding with respect to which such Claim promptly after learning Indemnified Party may be entitled to receive payment from the other party for Damages, such Indemnified Party shall, within ten (10) days, notify the Sellers, the Purchaser as the appropriate Indemnifying Party, of such Claimcomplaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the Indemnitor extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim. In addition, the Indemnified Party shall provide to the Indemnifying Party as promptly as practicable thereafter such information and documentation as may be reasonably requested by the Indemnifying Party to support and verify the claim asserted, so long as such disclosure would not violate the attorney-client privilege of the Indemnified Party. The Indemnifying Party may at its option undertake the defense thereof by representatives of its own choosing; provided, that any Indemnified Party may, in any event, at its own expense, monitor and participate in, but not control, the defense of such claim. If the Indemnitor, Indemnifying Party within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required, Claim fails to assume the defense of such Claim, the Indemnitee against whom such claim has been made Indemnified Parties will (upon further notice to Indemnitorthe Indemnifying Party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk, and at the expense, of the IndemnitorIndemnifying Party; provided, subject to however, that as long as the right of Indemnifying Party is reasonably contesting any claim in good faith, the Indemnitor to assume the defense of Indemnified Parties shall not pay or settle any such Claim at any time prior to settlement, compromise or final determination thereofclaim.
(b) 11.4.2 Anything in this Section 8.5 10.4 to the contrary, contrary notwithstanding, an Indemnitor the Indemnifying Party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (ia) which does not include as an unconditional term thereof hereof the delivery by the claimant or plaintiff to the Indemnitee Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding proceeding; or (iib) for other than monetary damages to be borne by the indemnifying party without the prior written consent of the IndemniteeIndemnifying Party, which consent shall not be unreasonably withheldwithheld or delayed.
Appears in 1 contract
Samples: Securities Exchange Agreement (Egpi Firecreek, Inc.)
Third Party Indemnification. The obligations of an Indemnitor either party to indemnify Indemnitees the other under this Article VIII Section 8.2 or 8.4 hereof with respect to Buyer Damages or Seller Damages, as the case may be, resulting from the assertion of liability by third parties (a "Claim"), will be subject to the following terms and conditions:
(a) Any party A Buyer Indemnitee or Seller Indemnitee, as the case may be (the "Indemnified Party"), against whom any Claim is asserted will give Sellers or Buyer, as the Indemnitor case may be (the "Indemnifying Party"), written notice of any such Claim promptly after learning of such Claim, and the Indemnitor Indemnifying Party may at its option undertake the defense thereof by representatives of its their own choosing. Failure to give prompt notice of a Claim hereunder shall not affect the Indemnifying Party's obligations under this Section 8.3, except to the extent the Indemnifying Party is materially prejudiced by such failure to give prompt notice. If the IndemnitorIndemnifying Party, within thirty (30) 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Indemnitee Indemnified Party against whom such claim Claim has been made will (upon further notice to Indemnitorthe Indemnifying Party) have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk, and at the expense, of the Indemnitor, Indemnifying Party subject to the right of the Indemnitor Indemnifying Party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof.
(b) Anything in this Section 8.5 8.3 to the contrary, contrary notwithstanding, an Indemnitor the neither party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (i) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee other party of a written release from all liability in respect of such action, suit or proceeding or and (ii) for other than monetary damages to be borne by the indemnifying other party without the prior written consent of the Indemniteeother party, which consent shall not be unreasonably withheld.
Appears in 1 contract
Third Party Indemnification. The obligations of an Indemnitor the Sellers, the Purchaser (as applicable, the “INDEMNIFYING PARTY”) to indemnify Indemnitees Indemnified Parties under this Article VIII hereof Section 11.1 or Section 11.2 hereof, respectively, with respect to Damages resulting from the assertion of liability by third parties (each, as the case may be, a "Claim"“CLAIM”), will shall be subject to the following terms and conditions:
(a) Any 11.4.1 Promptly after receipt by an Indemnified Party of notice by a third party against whom any Claim is asserted will give the Indemnitor written notice of any complaint or the commencement of any action or proceeding with respect to which such Claim promptly after learning Indemnified Party may be entitled to receive payment from the other party for Damages, such Indemnified Party shall, within ten (10) days, notify the Sellers, the Purchaser as the appropriate Indemnifying Party, of such Claimcomplaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the Indemnitor extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim. In addition, the Indemnified Party shall provide to the Indemnifying Party as promptly as practicable thereafter such information and documentation as may at its option undertake be reasonably requested by the defense thereof by representatives Indemnifying Party to support and verify the claim asserted, so long as such disclosure would not violate the attorney-client privilege of its own choosingthe Indemnified Party. If the Indemnitor, Indemnifying Party within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required, Claim fails to assume the defense of such Claim, the Indemnitee against whom such claim has been made Indemnified Parties will (upon further notice to Indemnitorthe Indemnifying Party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk, and at the expense, of the IndemnitorIndemnifying Party; provided, subject to however, that as long as the right of Indemnifying Party is reasonably contesting any claim in good faith, the Indemnitor to assume the defense of Indemnified Parties shall not pay or settle any such Claim at any time prior to settlement, compromise or final determination thereofclaim.
(b) 11.4.2 Anything in this Section 8.5 11.4 to the contrary, contrary notwithstanding, an Indemnitor the Indemnifying Party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (ia) which does not include as an unconditional term thereof hereof the delivery by the claimant or plaintiff to the Indemnitee Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding proceeding; or (iib) for other than monetary damages to be borne by the indemnifying party without the prior written consent of the IndemniteeIndemnifying Party, which consent shall not be unreasonably withheldwithheld or delayed.
Appears in 1 contract
Third Party Indemnification. The obligations of an Indemnitor either party hereto to indemnify Indemnitees the other party under this Article VIII hereof IX with respect to Damages resulting from the assertion of liability by third parties (each, as the case may be, a "Claim"), will be subject to the following terms and conditions:
(a) Any The party against whom any Claim is asserted seeking indemnification will give the Indemnitor party from whom indemnification is sought written notice of any such Claim promptly within a reasonable time (i.e., such time as will not prejudice the contest, defense, litigation, or settlement of the Claim) after learning of such Claim, and the Indemnitor party from whom indemnification is sought may at its option undertake the defense thereof by representatives of its own choosingchoosing (the party seeking indemnification will have the right to be represented by counsel of its own choice and at its own expense to participate in any defense conducted by the other party; provided that the party seeking indemnification will be entitled to reimbursement therefor if the other party loses its right to defend, compromise and settle the Claim as provided below). If the Indemnitor, within thirty (30) days after notice of any such Claim, or such shorter period as party from whom indemnification is reasonably required, sought fails to assume the defense of any such Claim within 30 days after receiving notice of such Claim, the Indemnitee against whom such claim has been made party seeking indemnification will (upon further notice to Indemnitor) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk, and at the expense, expense (which shall be promptly reimbursed by the other party upon request) of the Indemnitorparty from whom indemnification is sought; provided, subject to however, that as long as the right of party from whom indemnification is sought is reasonably contesting any claim in good faith and in a timely fashion the Indemnitor to assume the defense of party seeking indemnification shall not pay or settle any such Claim at any time prior to settlement, compromise or final determination thereofclaim.
(b) Anything in this Section 8.5 Article IX to the contrary, contrary notwithstanding, an Indemnitor the party from whom indemnification is sought shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (i) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee party seeking indemnification of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to be borne by the indemnifying party damages, without the prior written consent of the Indemniteeparty seeking indemnification, which consent shall not be unreasonably withheld.
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Samples: Asset Purchase Agreement (American Business Products Inc)
Third Party Indemnification. The obligations of an Indemnitor to indemnify Indemnitees under this Article VIII hereof with respect to Damages resulting from the assertion of liability by third parties (a "Claim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the Indemnitor written notice of any such Claim promptly after learning of such Claim, and the The Indemnitor may at its option undertake the defense thereof of a Third Party Claim by representatives of its own choosingchoosing reasonably acceptable to the Indemnified Party. If the Indemnitor assumes such defense, the Indemnified Party shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If, however, the Indemnified Party reasonably determines in the judgment of its counsel that representation by the Indemnitor's counsel of both the Indemnitor and the Indemnified Party would present such counsel with a material conflict of interest, then such Indemnified Party may employ separate counsel to represent or defend it in any such claim, action, suit or proceeding and the Indemnitor shall pay the reasonable fees and disbursements of such separate counsel. If the Indemnitor, within thirty (30) 30 days after notice of any such Third Party Claim, or such shorter period as is reasonably required, fails to assume the defense of such Third Party Claim, the Indemnitee Indemnified Party against whom such claim has been made will (upon further notice to the Indemnitor) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk, and at the expense, of the Indemnitor, subject to the right of the Indemnitor to assume the defense of such Third Party Claim at any time prior to settlement, compromise or final determination thereof.
(b) Anything in this Section 8.5 11.4 to the contrary, contrary notwithstanding, an the Indemnitor shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (i) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release of the Indemnified Party from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to be borne by the indemnifying party Indemnitor, without the prior written consent of the IndemniteeIndemnified Party. The Indemnified Party will have no liability to any third party with respect to any settlement or compromise of Third Party Claims effected without its consent.
(c) The Indemnitor and the Indemnified Party shall cooperate fully in all aspects of any investigation, defense, pre- trial activities, trial, compromise, settlement or discharge of any claim in respect of which consent shall indemnity is sought pursuant to this Article IX, including, but not be unreasonably withheldlimited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information.
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Third Party Indemnification. The In addition to the limitations set forth in Section 9.4, the obligations of an Indemnitor any Indemnifying Party to indemnify Indemnitees any Indemnified Party under this Article VIII hereof with respect to Damages 9, resulting from the assertion of liability by third parties (a "“Claim"”), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted Indemnified Party will give the Indemnitor Indemnifying Party written notice of any such Claim promptly after learning of such Claim, and the Indemnitor Indemnifying Party may at its option undertake the defense thereof by representatives of its own choosing. Failure to give prompt notice of a Claim hereunder shall not affect the Indemnifying Party’s obligations under this Article 9, except to the extent that the Indemnifying Party is materially prejudiced by such failure to give prompt notice. If the IndemnitorIndemnifying Party, within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Indemnitee Indemnified Party against whom such claim has been made will (upon further notice to Indemnitorthe Indemnifying Party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk, and at the expense, of the IndemnitorIndemnifying Party, subject to the right of the Indemnitor Indemnifying Party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof.
(b) Anything in this Section 8.5 Article 9 to the contrary, contrary notwithstanding, an Indemnitor (i) the Indemnified Party shall not settle a claim for which it is indemnified without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed, and (ii) the Indemnifying Party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (i) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to be borne by the indemnifying party Indemnifying Party without the prior written consent of the IndemniteeIndemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.
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Third Party Indemnification. The obligations of an Indemnitor the Sellers, the Purchaser (as applicable, the “INDEMNIFYING PARTY”) to indemnify Indemnitees Indemnified Parties under this Article VIII hereof Section 11.1 or Section 11.2 hereof, respectively, with respect to Damages resulting from the assertion of liability by third parties (each, as the case may be, a "Claim"“CLAIM”), will shall be subject to the following terms and conditions:
(a) Any 11.4.1 Promptly after receipt by an Indemnified Party of notice by a third party against whom any Claim is asserted will give the Indemnitor written notice of any complaint or the commencement of any action or proceeding with respect to which such Claim promptly after learning Indemnified Party may be entitled to receive payment from the other party for Damages, such Indemnified Party shall, within ten (10) days, notify the Sellers, the Purchaser as the appropriate Indemnifying Party, of such Claimcomplaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the Indemnitor extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim. In addition, the Indemnified Party shall provide to the Indemnifying Party as promptly as practicable thereafter such information and documentation as may be reasonably requested by the Indemnifying Party to support and verify the claim asserted, so long as such disclosure would not violate the attorney-client privilege of the Indemnified Party. The Indemnifying Party may at its option undertake the defense thereof by representatives of its own choosing; provided, that any Indemnified Party may, in any event, at its own expense, monitor and participate in, but not control, the defense of such claim. If the Indemnitor, Indemnifying Party within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required, Claim fails to assume the defense of such Claim, the Indemnitee against whom such claim has been made Indemnified Parties will (upon further notice to Indemnitorthe Indemnifying Party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk, and at the expense, of the IndemnitorIndemnifying Party; provided, subject to however, that as long as the right of Indemnifying Party is reasonably contesting any claim in good faith, the Indemnitor to assume the defense of Indemnified Parties shall not pay or settle any such Claim at any time prior to settlement, compromise or final determination thereofclaim.
(b) 11.4.2 Anything in this Section 8.5 11.4 to the contrary, contrary notwithstanding, an Indemnitor the Indemnifying Party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment (ia) which does not include as an unconditional term thereof hereof the delivery by the claimant or plaintiff to the Indemnitee Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding proceeding; or (iib) for other than monetary damages to be borne by the indemnifying party without the prior written consent of the IndemniteeIndemnifying Party, which consent shall not be unreasonably withheldwithheld or delayed.
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