Third Party Indemnification. The obligations of VALENT and PURCHASER (as applicable, the “Indemnifying Party”) to indemnify Indemnified Parties under Section 9.1 or Section 9.2 hereof, respectively, with respect to Damages resulting from the assertion of liability by third parties (each, as the case may be, a “Claim”), shall be subject to the following terms and conditions: (a) Promptly after receipt by an Indemnified Party of notice by a third party of any complaint or the commencement of any action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from the other party for Damages (a “Claims Event”), such Indemnified Party shall, within thirty (30) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability under this Agreement with respect to such claim, except to the extent that, such failure to notify the Indemnifying Party shall have adversely prejudiced the Indemnifying Party. 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 Indemnifying Party within thirty (30) days after notice of any such Claim fails to assume the defense of such Claim, the Indemnified Party will (upon further notice to the 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 Indemnifying Party; provided, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate with respect to the defense or prosecution of such Claim. Such cooperation shall include providing to the Indemnifying Party, after reasonable notice of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. (b) Anything in this Section 9.3 to the contrary notwithstanding, 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 hereof the delivery by the claimant or plaintiff to the Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (American Vanguard Corp)
Third Party Indemnification. The obligations of VALENT and PURCHASER (as applicable, the “Indemnifying Party”) to indemnify Indemnified Parties under Section 9.1 or Section 9.2 hereof, respectively, with respect to Damages resulting from Promptly after the assertion of liability by third parties (each, as the case may be, a “Claim”), shall be subject to the following terms and conditions:
(a) Promptly after receipt by an Indemnified Party of notice by a any third party of any complaint proceeding against any Glencore Indemnitee that results or may result in the commencement incurrence by such Glencore Indemnitee of any action or proceeding with respect to Loss for which such Indemnified Party may Glencore Indemnitee would be entitled to receive payment from the other party for Damages indemnification pursuant to this Agreement (a “Claims Event”"Third Party Proceeding"), such Indemnified Party shall, within thirty (30) days, Glencore Indemnitee shall promptly notify VALENT or PURCHASER, as the appropriate Indemnifying Party, Company of such complaint or of Third Party Proceeding. Such notice shall also specify with reasonable detail the commencement of such action or proceeding; provided, however, that factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to so notify the Indemnifying Party promptly provide such notice shall not relieve the Indemnifying Party from liability under this Agreement with respect Company of any obligation to such claimindemnify the Glencore Indemnitee, except to the extent that, such failure to notify prejudices the Indemnifying Party Company. Thereupon, the Company shall have adversely prejudiced the Indemnifying Party. In additionright, upon written notice (the Indemnified Party shall provide "Defence Notice") to the Indemnifying Party as promptly as practicable thereafter such information and documentation as may be reasonably requested Glencore Indemnitee within 45 days after receipt by the Indemnifying Party to support and verify the claim asserted, so long as such disclosure would not violate the attorney-client privilege Company of notice of the Indemnified Party. The Indemnifying Third Party may, at its option, undertake the defense thereof by representatives of its own choosing; provided, that any Indemnified Party may, in any eventProceeding to conduct, at its own expense, monitor and participate inthe defence of the Third Party Proceeding in its own name or, but not controlif necessary, in the defense name of such claimthe Glencore Indemnitee. If the Indemnifying Party within thirty (30) days after notice of any such Claim fails to assume the defense of such Claim, the Indemnified Party will (upon further notice to the Indemnifying Party) Any Glencore Indemnitee shall have the right to undertake employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) the defensedefence thereof, compromise or settlement but the fees and expenses of such claim on behalf counsel shall not be included as part of and for any Losses incurred by the account and risk, and Glencore Indemnitee unless: (i) the Company failed to give the Defence Notice; or (ii) the employment of such counsel at the expense, expense of the Indemnifying Party; provided, however, that as long as Company has been specifically authorized in writing by the Indemnifying Party is reasonably contesting any claim in good faith, Company. The party conducting the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate with respect to the defense or prosecution of such Claim. Such cooperation shall include providing to the Indemnifying Party, after reasonable notice of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation defence of any materials provided hereunder.
(b) Anything in this Section 9.3 to Third Party Proceeding shall keep the contrary notwithstanding, the Indemnifying Party other party reasonably apprised of all significant developments and shall not enter into any settlement or settlement, compromise of any action, suit or proceeding or consent to judgment with respect to such Third Party Proceeding unless: (a) the entry of any judgment (i) which does not include as an unconditional term hereof Company and the delivery by the claimant or plaintiff to the Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages without the prior written consent of the Indemnified PartyGlencore Indemnitee consent, which consent shall not be unreasonably withheld withheld, delayed or delayedconditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 2 contracts
Samples: Investor Rights and Governance Agreement (Polymet Mining Corp), Investor Rights and Governance Agreement (Polymet Mining Corp)
Third Party Indemnification. The obligations of VALENT and PURCHASER (as applicable, the “Indemnifying Party”) Seller to indemnify Indemnified Parties Buyer Indemnitees under Section 9.1 or Section 9.2 hereof, respectively, 10.2 with respect to Buyer Damages and the obligations of Buyer to indemnify Seller Indemnitees under Section 10.3 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”), shall will be subject to the following additional terms and conditions:
(a) Promptly after receipt by an Any Party against whom any Claim is asserted (the “Indemnified Party of Party”) will give the indemnifying party (the “Indemnifying Party”) written notice by a third party of any complaint or the commencement of any action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from the other party for Damages (a “Claims Event”), such Indemnified Party shall, within thirty (30) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, Claim promptly after learning of such complaint or of the commencement of such action or proceeding; providedClaim, however, that the failure to so notify and the Indemnifying Party shall not relieve the Indemnifying Party from liability under this Agreement with respect to such claim, except to the extent that, such failure to notify the Indemnifying Party shall have adversely prejudiced the Indemnifying Party. 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, option undertake the defense thereof by representatives of its own choosing; provided. Failure to give prompt notice of a Claim hereunder shall not affect the Indemnifying Party’s obligations under this Article X, that any Indemnified except to the extent the Indemnifying Party may, in any event, at its own expense, monitor and participate in, but not control, the defense of is prejudiced by such claimfailure to give prompt notice. If the Indemnifying Party Party, within thirty (30) 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 Indemnified Party will (upon further notice to the 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 Indemnifying Party; provided, however, that as long as subject to the right of the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate with respect to assume the defense or prosecution of such Claim. Such cooperation shall include providing Claim at any time prior to the Indemnifying Partysettlement, after reasonable notice of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereundercompromise or final determination thereof.
(b) Anything in this Section 9.3 10.4 to the contrary notwithstanding, 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 hereof thereof the delivery by the claimant or plaintiff to the Indemnified Parties 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, without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld withheld, delayed or delayedconditioned.
(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 pursuant to this Article X, including by providing the other Party with reasonable access to employees and officers (including as witnesses) and other information.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Summit Midstream Partners, LP), Purchase and Sale Agreement (Summit Midstream Partners, LP)
Third Party Indemnification. The obligations of VALENT and PURCHASER (as applicable, the “Indemnifying Party”) Indemnitor to indemnify Indemnified Parties the Indemnitees under Section 9.1 8.2 or Section 9.2 8.3 hereof, respectivelyas the case may be, with respect to Damages resulting from the assertion of liability by third parties (each, as the case may be, a “"Claim”"), shall will be subject to the following terms and conditions:
(a) Promptly after receipt by an Indemnified Party of Any party against whom any Claim is asserted will give Seller written notice by a third party of any complaint or the commencement of any action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from the other party for Damages (a “Claims Event”), such Indemnified Party shall, within thirty (30) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, Claim promptly after learning of such complaint or of the commencement of such action or proceeding; providedClaim, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability under this Agreement with respect to such claim, except to the extent that, such failure to notify the Indemnifying Party shall have adversely prejudiced the Indemnifying Party. In addition, the Indemnified Party shall provide to the Indemnifying Party as promptly as practicable thereafter such information and documentation as Indemnitor 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, option undertake the defense thereof by representatives of its own choosing; provided. Failure to give prompt notice of a Claim hereunder shall not affect Indemnitor's obligations under this Section 8.5, that any Indemnified Party may, in any event, at its own expense, monitor and participate in, but not control, except to the defense of extent Indemnitor is materially prejudiced by such claimfailure to give prompt notice. If the Indemnifying Party Indemnitor, within thirty (30) days after notice of any such Claim Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, or does not continue to defend the Indemnified Party Claim in good faith, the Indemnitee against whom such claim has been made will (upon further notice to the Indemnifying PartyIndemnitor) 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 Indemnitor, subject to the Indemnifying Party; providedright of Indemnitor to assume the defense of such Claim at any time prior to settlement, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay compromise or settle any such claimfinal determination thereof. If Indemnitee reasonably believes that the Indemnifying Party chooses to defend handling of the Defense by Indemnitor may have a material adverse affect on any Indemnitee, its business or prosecute a Claimfinancial condition, the Parties hereto shall cooperate or its relationship with respect to any customer, prospect, supplier, employee, salesman, consultant, agent or representative, then Indemnitee may, at its option and expense and through counsel of its choice, assume control of the defense or prosecution of such Claim. Such cooperation , provided that Indemnitor shall include providing be entitled to participate in the Indemnifying Party, after reasonable notice defense of the need therefor, records such Claim at its expense and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation through counsel of any materials provided hereunderits choice.
(b) Anything in this Section 9.3 8.5 to the contrary contrary, notwithstanding, the Indemnifying Party 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 hereof thereof the delivery by the claimant or plaintiff to the Indemnified Parties 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 in full by Indemnitor, without the prior written consent of the Indemnified PartyIndemnitee, which consent shall not be unreasonably withheld or delayedwithheld.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Medaphis Corp), Stock Purchase Agreement (Nco Group Inc)
Third Party Indemnification. The obligations of VALENT and PURCHASER (as applicable, the “Indemnifying Party”) Sellers to indemnify Indemnified Parties the Buyer Indemnitees under Section 9.1 or Section 9.2 hereof, respectively, 7.1 with respect to Buyer Damages and the obligations of Buyer to indemnify the Seller Indemnitees under Section 7.2 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”), shall will be subject to the following terms and conditions:
(a) Promptly after receipt by A party claiming indemnification under this Agreement (an “Indemnified Party of notice by a third Party”) shall with reasonable promptness (i) notify the party from whom indemnification is sought (the “Indemnifying Party”) of any complaint or the commencement of any action or proceeding with respect Claims for which indemnification is sought and (ii) transmit to which such Indemnified Party may be entitled to receive payment from the other party for Damages (a “Claims Event”), such Indemnified Party shall, within thirty (30) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve a written notice (“Claim Notice”) describing in reasonable detail the Indemnifying Party from liability under this Agreement nature of the Claim, a copy of all papers served with respect to such claimClaim (if any), and the basis of the Indemnified Party’s request for indemnification under this Agreement. Failure to provide such notice shall not affect the right of an Indemnified Party to indemnification, except to the extent thatthe Indemnifying Party is materially prejudiced by such failure.
(b) Within 30 days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (i) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article VII with respect to such failure Claim and (ii) whether the Indemnifying Party desires, at its sole cost and expense, to notify defend the Indemnified Party against such Claim.
(c) If the Indemnifying Party within the Election Period elects to assume the defense of the Claim, then the Indemnifying Party shall have adversely prejudiced the Indemnifying Party. In additionright to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification hereunder), such Claim by all appropriate Proceedings, which Proceedings shall provide to the Indemnifying Party as promptly as practicable thereafter such information and documentation as may be reasonably requested prosecuted diligently by the Indemnifying Party to support and verify a final conclusion or settled at the claim asserted, so long as such disclosure would not violate the attorney-client privilege discretion of the Indemnified PartyIndemnifying Party in accordance with this Section 7.3(c). The Indemnifying Party mayshall have full control of such defense and Proceedings, including any compromise or settlement thereof. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification hereunder), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its optioninterests or those of the Indemnifying Party and not prejudicial to the Indemnifying Party (it being understood and agreed that if an Indemnified Party takes any such action that is materially prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, undertake the defense thereof by representatives Indemnifying Party shall be relieved of its own choosing; providedobligations hereunder with respect to such Claim to the extent the Indemnifying Party was so prejudiced and harmed). If requested by the Indemnifying Party, that any the Indemnified Party mayagrees to cooperate with the Indemnifying Party and its counsel in contesting any Claim that the Indemnifying Party elects to contest, in including, without limitation, the making of any eventrelated counterclaim against the Person asserting the Claim or any cross-complaint against any Person. Except as otherwise provided herein, at its own expense, monitor and the Indemnified Party may participate in, but not control, any defense or settlement of any Claim controlled by the defense Indemnifying Party pursuant to this Section 7.3 and shall bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnifying Party may not agree to any compromise or settlement which would require any action other than the payment of such claim. money that shall be fully paid by the Indemnifying Party without the express written consent of the Indemnified Party.
(d) If the Indemnifying Party fails within thirty (30) days after notice of any such Claim fails the Election Period to assume the defense of such Claim, elect to defend the Indemnified Party will (upon further notice pursuant to Section 7.3(c), or if the Indemnifying PartyParty elects to defend the Indemnified Party pursuant to Section 7.3(c) but fails diligently and promptly to prosecute or settle the Claim as herein provided, then the Indemnified Party shall have the right to undertake defend, at the defensesole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification hereunder), compromise the Claim by all appropriate Proceedings, which Proceedings shall be promptly and vigorously prosecuted by the Indemnified Party to a final conclusion or settlement settled. The Indemnified Party shall have full control of such claim on behalf of defense and for proceedings. Notwithstanding the account and riskforegoing, if the Indemnifying Party has notified the Indemnified Party that it does not agree to any potential liability to the Indemnified Party under this Section 7.3(c), and at the expense, if such dispute is resolved in favor of the Indemnifying Party; provided, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate with respect to the defense or prosecution of such Claim. Such cooperation shall include providing to the Indemnifying Party, after reasonable notice of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder.
(b) Anything in this Section 9.3 to the contrary notwithstanding, the Indemnifying Party shall not enter into any settlement or compromise of any action, suit or proceeding or consent be required to bear the entry of any judgment (i) which does not include as an unconditional term hereof the delivery by the claimant or plaintiff to the Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages without the prior written consent costs and expenses of the Indemnified Party’s defense pursuant to this Section 7.3 or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and the Indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses of such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 7.3, and the Indemnifying Party shall bear its own costs and expenses with respect to such participation.
(e) In the event any Indemnified Party has a claim against any Indemnifying Party hereunder that does not involve a Claim, the Indemnified Party shall transmit to the Indemnifying Party a written notice (the “Indemnity Notice”) describing in reasonable detail the nature of the claim, an estimate of the amount of damages attributable to such claim to the extent feasible (which consent estimate shall not be unreasonably withheld or delayedconclusive of the final amount of such claim) and the basis of the Indemnified Party’s request for indemnification under this Agreement. If the Indemnifying Party does not notify the Indemnified Party within 30 days from its receipt of the Indemnity Notice that the Indemnifying Party disputes such claim, the claim specified by the Indemnified Party in the Indemnity Notice shall be deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party has timely disputed such claim, as provided above, such dispute shall be resolved in accordance with this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Hemiwedge Industries, Inc)
Third Party Indemnification. The obligations If any legal proceedings are instituted or any claim is asserted by any third party in respect of VALENT and PURCHASER (as applicable, which the “Indemnifying Party”) to indemnify Seller Indemnified Parties under Section 9.1 or Section 9.2 hereofon the one hand, respectively, with respect to Damages resulting from the assertion of liability by third parties (each, as the case may be, a “Claim”), shall be subject to the following terms and conditions:
(a) Promptly after receipt by an Indemnified Party of notice by a third party of any complaint or the commencement of any action or proceeding with respect to which such Buyer Indemnified Party Parties on the other hand, may be entitled to receive payment indemnity hereunder, the party asserting such right to indemnity shall give the party from whom indemnity is sought written notice thereof. A delay in giving such notice shall only relieve the other party for Damages (a “Claims Event”), such Indemnified Party shall, within thirty (30) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, of such complaint or recipient of the commencement of such action or proceeding; provided, however, that the failure obligation to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability under this Agreement with respect to such claim, except indemnify to the extent that, such failure to notify the Indemnifying Party recipient suffers actual prejudice because of the delay. The party from whom indemnity is sought shall have adversely prejudiced the Indemnifying Party. In additionright, but not 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 mayobligation, at its optionoption and expense with counsel of its choice, undertake to control the defense thereof by representatives and may compromise or settle the same without the consent of its own choosingthe indemnified party (which consent will not be unreasonably withheld or delayed) provided the settlement involves only money damages; providedprovided that (i) the party from whom indemnity is sought irrevocably acknowledges in writing full responsibility for and agrees to fully indemnify the party asserting such right to indemnity and (ii) the party asserting such right to indemnity shall have the right to participate, that any Indemnified Party maybut not control, in any eventsuch defense, at its own expense, monitor and participate in, but not control, with counsel of its choice in connection with the defense of such a proceeding or claim. If the Indemnifying Party within thirty (30) days after notice party from whom indemnity is sought does not assume control of any such Claim fails to assume the defense of such Claima proceeding or claim, the Indemnified Party will (upon further notice to the Indemnifying Party) have the party asserting such right to undertake the defenseindemnity shall not, compromise or settlement of such claim on behalf of and for the account and risk, and at the expense, of the Indemnifying Party; provided, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate with respect to the defense or prosecution of such Claim. Such cooperation shall include providing to the Indemnifying Party, after reasonable notice of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder.
(b) Anything in this Section 9.3 to the contrary notwithstanding, 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 hereof the delivery by the claimant or plaintiff to the Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages without the prior written consent of the Indemnified Party, party from whom indemnity is sought (which consent shall not be unreasonably withheld or delayed), pay, compromise or settle any such proceeding or claim. If the party from whom indemnity is sought does assume control of the defense of such a proceeding or claim, it will not, without the prior written consent of the party asserting such right to indemnity, settle the proceeding or claim or consent to entry of any judgment relating thereto which does not include as an unconditional term thereof the giving by the claimant to the party asserting such right to indemnity a release from all Liability in respect of the proceeding or claim. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such proceeding or claim.
Appears in 1 contract
Third Party Indemnification. The obligations of VALENT and PURCHASER (as applicable, the “Indemnifying Party”) to indemnify Indemnified Parties under Section 9.1 or Section 9.2 hereof, respectively, with respect to Damages resulting from Promptly after the assertion of liability by third parties (each, as the case may be, a “Claim”), shall be subject to the following terms and conditions:
(a) Promptly after receipt by an Indemnified Party of notice by a any third party of any complaint Third Party Claim (a “Third Party Proceeding”) against any person entitled to indemnification under this Agreement (the “Indemnitee”) that results or may result in the commencement incurrence by such Indemnitee of any action Claim or proceeding with respect to Loss for which such Indemnified Party may Indemnitee would be entitled to receive payment from the other party for Damages (a “Claims Event”)indemnification pursuant to this Agreement, such Indemnified Party shall, within thirty Indemnitee will promptly notify the party from whom such indemnification is or may be sought (30the “Indemnitor”) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, of such complaint Third Party Proceeding. Such notice will also specify with reasonable detail (to the extent the information is reasonably available) the factual basis for the Third Party Proceeding, the amount claimed by the third party, or if such amount is not then determinable, a reasonable estimate of the commencement likely amount of such action or proceeding; provided, however, that the Third Party Claim. The failure to so notify the Indemnifying Party shall promptly provide such notice will not relieve the Indemnifying Party from liability under this Agreement with respect Indemnitor of any obligation to such claimindemnify the Indemnitee, except to the extent that, such failure to notify prejudices the Indemnifying Party shall have adversely prejudiced the Indemnifying PartyIndemnitor. In additionXxxxxxxxx, the Indemnified Party shall provide Indemnitor will have the right, upon written notice (the “Defence Notice”) to the Indemnifying Party as promptly as practicable thereafter such information and documentation as may be reasonably requested Indemnitee within 30 days after receipt by the Indemnifying Party to support and verify the claim asserted, so long as such disclosure would not violate the attorney-client privilege Indemnitor of notice of the Indemnified Party. The Indemnifying Third Party may, at its option, undertake the defense thereof by representatives of its own choosing; provided, that any Indemnified Proceeding (or sooner if such Third Party may, in any eventProceeding so requires) to conduct, at its own expense, monitor the defence against the Third Party Proceeding in its own name or, if necessary, in the name of the Indemnitee provided that the Indemnitor acknowledges and participate inagrees in the Defence Notice that as between the Indemnitor and the Indemnitee, but not controlit is liable to pay for all Losses arising from or relating to such Third Party Proceeding. The Defence Notice will specify the counsel the Indemnitor will appoint to defend such Third Party Proceeding (the “Defence Counsel”), and the defense of such claim. If the Indemnifying Party within thirty (30) days after notice of any such Claim fails to assume the defense of such Claim, the Indemnified Party Indemnitee will (upon further notice to the Indemnifying Party) have the right to undertake approve the defenseDefence Counsel, compromise or settlement which approval will not be unreasonably withheld. Any Indemnitee will have the right to employ separate counsel in any Third Party Proceeding and/or to participate in the defence thereof, but the fees and expenses of such claim on behalf counsel will not be included as part of and for any Losses incurred by the account and riskIndemnitee unless: (i) the Indemnitor failed to give the Defence Notice, and at including the expenseacknowledgement to be set out therein within the prescribed period; (ii) such Indemnitee has received an opinion of counsel, reasonably acceptable to the Indemnitor, to the effect that the interests of the Indemnifying Party; provided, however, that as long as Indemnitee and the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate Indemnitor with respect to the defense Third Party Proceeding are sufficiently adverse to prohibit the representation by the same counsel of both parties under applicable ethical rules; or prosecution (iii) the employment of such Claim. Such cooperation shall include providing to counsel at the Indemnifying Party, after reasonable notice expense of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation Indemnitor has been specifically authorized by the Indemnitor. The party conducting the defence of any materials provided hereunder.
(b) Anything in this Section 9.3 to Third Party Proceeding will keep the contrary notwithstanding, the Indemnifying Party shall other party apprised of all significant developments and will not enter into any settlement or settlement, compromise of any action, suit or proceeding or consent to judgment with respect to such Third Party Proceeding unless the entry of any judgment (i) which does not include as an unconditional term hereof Indemnitor and the delivery by the claimant or plaintiff to the Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages without the prior written consent of the Indemnified PartyIndemnitee consent, which consent shall will not be unreasonably withheld or delayedwithheld.
Appears in 1 contract
Samples: Share Purchase Agreement
Third Party Indemnification. The respective obligations and liabilities of VALENT the Seller and PURCHASER Buyer (as applicable, the “Indemnifying Partyindemnifying party”) to indemnify the Buyer Indemnified Parties and the Seller Indemnified Parties, as appropriate (the “party to be indemnified”), under Section 9.1 or Section 9.2 hereof, respectively, Sections 8.1 and 8.2 with respect to Damages Claims resulting from the assertion of liability by third parties (each, as the case may be, a “Claim”), shall be subject to the following terms and conditions:
(a) Promptly As soon as practicable after receipt by an Indemnified Party of notice by a third party of commencement of any complaint action evidenced by service of process or other legal pleading, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any action or proceeding with respect such action, if materially prejudicial to which its ability to defend such Indemnified Party may be entitled to receive payment from the other action, shall relieve such indemnifying party for Damages (a “Claims Event”), such Indemnified Party shall, within thirty (30) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability under this Agreement with respect to such claim, except to the extent that, such failure party to notify the Indemnifying Party be indemnified. The indemnifying party shall have adversely prejudiced the Indemnifying Party. In addition, the Indemnified Party shall provide right 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, choosing and at its own expense, monitor and ; provided that the party to be indemnified may participate in, but not controlin the defense with counsel of its own choice, the defense fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such claim. If fees and expenses, (ii) the Indemnifying Party within thirty (30) days after notice of any such Claim fails indemnifying party has failed to assume the defense of such Claimaction or (iii) the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the Indemnified Party indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the Indemnifying Partyindemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk, risk of the indemnifying party and at the indemnifying party’s expense, subject to the right of the Indemnifying Partyindemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Notwithstanding the foregoing, the indemnifying party shall not settle any claim without the prior consent of the party to be indemnified; provided, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate with respect to the defense or prosecution of such Claim. Such cooperation shall include providing to the Indemnifying Party, after reasonable notice of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder.
(b) Anything in this Section 9.3 to the contrary notwithstanding, 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 hereof the delivery by the claimant or plaintiff to the Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayedwithheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other with respect to any claim as described in this Section 8.4.
Appears in 1 contract
Samples: Asset Purchase Agreement (Mobility Electronics Inc)
Third Party Indemnification. The obligations of VALENT and PURCHASER (as applicable, the “Indemnifying Party”) Seller to indemnify Indemnified Parties the Buyer Indemnitees under Section 9.1 or Section 9.2 hereof, respectively, 5.2 hereof with respect to Buyer Damages and the obligations of the Buyers and Guarantor to indemnify the Seller Indemnitees under Section 5.3 hereof 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”), shall will be subject to the following terms and conditions:
(a) Promptly after receipt by an Indemnified Any party against whom any Third Party of Claim is asserted will give the indemnifying Party written notice by a third party of any complaint or the commencement of any action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from the other party for Damages (a “Claims Event”), such Indemnified Party shall, within thirty (30) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, of such complaint or of the commencement Third Party Claim promptly after learning of such action or proceeding; providedThird Party Claim, however, that and the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability under this Agreement with respect to such claim, except to the extent that, such failure to notify the Indemnifying Party shall have adversely prejudiced the Indemnifying Party. 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 indemnifying Party may, at its option, undertake the defense thereof by representatives counsel reasonably satisfactory to the indemnified Party. Failure to give prompt notice of its own choosing; provideda Third Party Claim hereunder shall not affect the indemnifying Party obligations under this Agreement, that any Indemnified except to the extent the indemnifying Party may, in any event, at its own expense, monitor and participate in, but not control, the defense of is materially prejudiced by such claimfailure to give prompt notice. If the Indemnifying Party indemnifying Party, within thirty (30) days after notice of any such Claim Third Party Claim, or such shorter period as is reasonably required, fails to assume the defense of such Third Party Claim, or if the Indemnified indemnifying Party at any time thereafter shall fail to diligently maintain and prosecute such defense, the Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such Third Party Claim has been made will (upon further notice to the Indemnifying indemnifying Party) have the right 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 Indemnifying indemnifying Party; provided, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate with respect subject to the right of the indemnifying Party to assume the defense or prosecution of such Claim. Such cooperation shall include providing Third Party Claim at any time prior to the Indemnifying Partysettlement, after reasonable notice of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereundercompromise or final determination thereof.
(b) Anything in this Section 9.3 5.4 to the contrary notwithstanding, the Indemnifying 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 hereof thereof the delivery by the claimant or plaintiff to the Indemnified Parties 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, without the prior written consent of the Indemnified PartySeller Indemnitee or the Buyer Indemnitee, as the case may be, which consent shall not be unreasonably withheld 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 delayeddischarge of any claim in respect of which indemnity is sought, including, but not limited to, by providing the other Party with reasonable access to employees and officers (including as witnesses) and other information.
(d) Notwithstanding the foregoing, if an indemnified Party determines in good faith that there is a reasonable probability that a Third Party Claim may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified Party may, by notice to the indemnifying Party, assume the exclusive right to defend, compromise or settle such Third Party Claim, but the indemnifying Party will not be bound by any determination of any Third Party Claim so defended for the purposes of this Agreement or any compromise or settlement effected without its consent (which may not be unreasonably withheld).
Appears in 1 contract
Samples: Membership Interests Purchase Agreement (MMC Energy, Inc.)
Third Party Indemnification. The obligations of VALENT and PURCHASER (as applicable, the “Indemnifying Party”) to indemnify Indemnified Parties under Section 9.1 or Section 9.2 hereof, respectively, with respect to Damages resulting from Promptly after the assertion of liability by third parties (each, as the case may be, a “Claim”), shall be subject to the following terms and conditions:
(a) Promptly after receipt by an Indemnified Party of notice by a any third party of any complaint Third Party Claim (a “Third Party Proceeding”) against any person entitled to indemnification under this Agreement (the “Indemnitee”) that results or may result in the commencement incurrence by such Indemnitee of any action Claim or proceeding with respect to Loss for which such Indemnified Party may Indemnitee would be entitled to receive payment from the other party for Damages (a “Claims Event”)indemnification pursuant to this Agreement, such Indemnified Party shall, within thirty Indemnitee will promptly notify the party from whom such indemnification is or may be sought (30the “Indemnitor”) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, of such complaint Third Party Proceeding. Such notice will also specify with reasonable detail (to the extent the information is reasonably available) the factual basis for the Third Party Proceeding, the amount claimed by the third party, or if such amount is not then determinable, a reasonable estimate of the commencement likely amount of such action or proceeding; provided, however, that the Third Party Claim. The failure to so notify the Indemnifying Party shall promptly provide such notice will not relieve the Indemnifying Party from liability under this Agreement with respect Indemnitor of any obligation to such claimindemnify the Indemnitee, except to the extent that, such failure to notify prejudices the Indemnifying Party shall have adversely prejudiced the Indemnifying PartyIndemnitor. In additionThereupon, the Indemnified Party shall provide Indemnitor will have the right, upon written notice (the “Defence Notice”) to the Indemnifying Party as promptly as practicable thereafter such information and documentation as may be reasonably requested Indemnitee within 30 days after receipt by the Indemnifying Party to support and verify the claim asserted, so long as such disclosure would not violate the attorney-client privilege Indemnitor of notice of the Indemnified Party. The Indemnifying Third Party may, at its option, undertake the defense thereof by representatives of its own choosing; provided, that any Indemnified Proceeding (or sooner if such Third Party may, in any eventProceeding so requires) to conduct, at its own expense, monitor the defence against the Third Party Proceeding in its own name or, if necessary, in the name of the Indemnitee provided that: (a) the Indemnitor acknowledges and participate inagrees in the Defence Notice that as between the Indemnitor and the Indemnitee, but not control, it is liable to pay for all Losses arising from or relating to such Third Party Proceeding and (b) the defense Indemnitor provides to the Indemnitee adequate security (approved by the Indemnitee acting reasonably) from time to time in respect of such claimLosses. If The Defence Notice will specify the Indemnifying counsel the Indemnitor will appoint to defend such Third Party within thirty Proceeding (30) days after notice of any such Claim fails to assume the defense of such Claim“Defence Counsel”), and the Indemnified Party Indemnitee will (upon further notice to the Indemnifying Party) have the right to undertake approve the defenseDefence Counsel, compromise which approval will not be unreasonably withheld or settlement delayed. Any Indemnitee will have the right to employ separate counsel in any Third Party Proceeding and/or to participate in the defence thereof, but the fees and expenses of such claim on behalf counsel will not be included as part of any Losses incurred by the Indemnitee unless (i) the Indemnitor failed to give the Defence Notice, including the acknowledgement and for agreement to be set out therein within the account and riskprescribed period, and at (ii) such Indemnitee has received an opinion of counsel, reasonably acceptable to the expenseIndemnitor, to the effect that the interests of the Indemnifying Party; provided, however, that as long as Indemnitee and the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate Indemnitor with respect to the defense Third Party Proceeding are sufficiently adverse to prohibit the representation by the same counsel of both parties under applicable ethical rules, or prosecution (iii) the employment of such Claim. Such cooperation shall include providing to counsel at the Indemnifying Party, after reasonable notice expense of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation Indemnitor has been specifically authorized by the Indemnitor. The party conducting the defence of any materials provided hereunder.
(b) Anything in this Section 9.3 to Third Party Proceeding will keep the contrary notwithstanding, the Indemnifying Party shall other party apprised of all significant developments and will not enter into any settlement or settlement, compromise of any action, suit or proceeding or consent to judgment with respect to such Third Party Proceeding unless the entry of any judgment (i) which does not include as an unconditional term hereof Indemnitor and the delivery by the claimant or plaintiff to the Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages without the prior written consent of the Indemnified PartyIndemnitee consent, which consent shall will not be unreasonably withheld or delayed.
Appears in 1 contract
Samples: Transaction Agreement (Bce Inc)
Third Party Indemnification. The obligations of VALENT --------------------------- the Parent and PURCHASER (as applicable, the “Indemnifying Party”) Sellers to indemnify Indemnified Parties the Buyer Indemnitees under Section 9.1 or Section 9.2 hereof, respectively, 7.2 hereof with respect to Buyer Damages and the obligations of the Buyer to indemnify the Parent/Seller Indemnitees under Section 7.3 hereof with respect to Parent/Seller Damages and to indemnify the Xxxxxxx Indemnitees with respect to Xxxxxxx Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a “"Claim”"), shall will be subject to the following terms and conditions:
(a) Promptly after receipt by an Indemnified Party of notice by a third party acquiring knowledge of any complaint or claim in respect of which a party (the commencement of any action or proceeding with respect to which such "Indemnified Party Party") may be entitled to receive payment seek indemnification from the other party for Damages (a “Claims Event”)the "Indemnifying Party") hereunder, such the Indemnified Party shall, within thirty (30) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, of such complaint or of the commencement of such action or proceeding; provided, however, that the failure shall give written notice thereof to so notify the Indemnifying Party shall describing such claim and demanding indemnification hereunder. Notwithstanding the foregoing, failure to provide the aforementioned notice will not relieve the Indemnifying Party from of any liability that it may have to the Indemnified Party under this Agreement with respect to such claimAgreement, except to the extent that, that (i) such failure to notify provide notice causes the Indemnifying Party shall have adversely prejudiced the Indemnifying Party. 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 amounts paid by the Indemnifying Party to support and verify be greater than they would have been had such notice been given on a reasonably timely basis; or (ii) such notice is not delivered to the claim assertedIndemnifying Party prior to the expiration of any applicable survival period, so long as such disclosure would not violate the attorney-client privilege of the Indemnified Partyif any, under Section 7.1. The Indemnifying Party may, at its option, undertake the defense thereof by representatives will be entitled to assume control 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 any claim, and to settle or compromise such claimclaim in its discretion, subject to the consent of the Indemnified Party which consent will not be unreasonably withheld or delayed. If After written notice by the Indemnifying Party within thirty (30) days after notice to the Indemnified Party of its election to assume control of the defense of any such Claim fails to assume the defense of such Claim, the Indemnified Party will (upon further notice to the 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 Indemnifying Party; provided, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate with respect to the defense or prosecution of such Claim. Such cooperation shall include providing to the Indemnifying Party, after reasonable notice of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder.
(b) Anything in this Section 9.3 to the contrary notwithstandingaction, the Indemnifying Party shall not enter into be liable to such Indemnified Party hereunder for any settlement or compromise of any action, suit or proceeding or consent to legal expenses subsequently incurred by such Indemnified Party in connection with the entry of any judgment (i) which does not include as an unconditional term hereof the delivery by the claimant or plaintiff to the Indemnified Parties of a written release from all liability defense thereof. Notwithstanding anything in respect of such action, suit or proceeding or (ii) for other than monetary damages without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed.this Section
Appears in 1 contract
Third Party Indemnification. The obligations Except as provided in Section 5.15 of VALENT and PURCHASER (as applicable, the “Indemnifying Party”) to indemnify Indemnified Parties under Section 9.1 or Section 9.2 hereof, respectively, this 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”), shall will be subject to the following terms and conditions:
(a) Promptly after receipt by an Indemnified Party of Any party against whom any Claim is asserted will give the indemnifying party written notice by a third party of any complaint or the commencement of any action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from the other party for Damages (a “Claims Event”), such Indemnified Party shall, within thirty (30) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, Claim promptly after learning of such complaint or of Claim, and the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability under this Agreement with respect to such claim, except to the extent that, such failure to notify the Indemnifying Party shall have adversely prejudiced the Indemnifying Party. 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 indemnifying party may, at its option, undertake the defense thereof of such Claim by representatives of its own choosing; provided, however, that any Indemnified Party may(i) such party shall have first reasonably demonstrated its financial ability to provide full indemnification to the indemnified party, in any event, at its own expense, monitor and participate in, but (ii) the indemnifying party may not control, 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 Indemnifying Party within thirty (30) days after notice of any such Claim indemnifying party fails to assume the defense of such ClaimClaim within the required time period, the Indemnified Party Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such Claim has been made will (upon further notice to the Indemnifying Partyindemnifying 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 Indemnifying Party; providedindemnifying party, subject to the right of the 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 as long 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 Indemnifying Party is reasonably contesting case may be, for any claim in good faith, period during which the Indemnified Parties shall indemnifying party has not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate with respect to assumed the defense or prosecution of such Claim. Such cooperation shall include providing to the Indemnifying Party, after reasonable notice of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunderthereof.
(b) Anything in this Section 9.3 8.4 to the contrary notwithstanding, the Indemnifying Party 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 hereof of the delivery by the claimant or plaintiff to the Indemnified Parties 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, without the prior written consent of the Indemnified PartySeller Indemnitee or the Buyer Indemnitee, as the case may be, which consent shall not be unreasonably withheld withheld.
(c) The indemnifying party and the Seller Indemnitee or delayedBuyer 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
Third Party Indemnification. The obligations of VALENT and PURCHASER (as applicable, the “Indemnifying Party”) to indemnify Indemnified Parties under Section 9.1 or Section 9.2 hereof, respectively, with respect to Damages resulting from the assertion of liability by third parties (each, as the case may be, a “Claim”), shall be subject to the following terms and conditions:
(a1) Promptly after receipt the assertion by an Indemnified Party of notice by a any third party of any complaint Third Party Claim (a “Third Party Proceeding”) against any person entitled to indemnification under this Agreement (the “Indemnitee”) that results or may result in the commencement incurrence by such Indemnitee of any action Claim or proceeding with respect to Loss for which such Indemnified Party may Indemnitee would be entitled to receive payment from the other party for Damages (a “Claims Event”)indemnification pursuant to this Agreement, such Indemnified Party shall, within thirty Indemnitee will promptly notify the party from whom such indemnification is or may be sought (30the “Indemnitor”) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, of such complaint Third Party Proceeding. Such notice will also specify with reasonable detail (to the extent the information is reasonably available) the factual basis for the Third Party Proceeding, the amount claimed by the third party, or if such amount is not then determinable, a reasonable estimate of the commencement likely amount of such action or proceeding; provided, however, that the Third Party Claim. The failure to so notify the Indemnifying Party shall promptly provide such notice will not relieve the Indemnifying Party from liability under this Agreement with respect Indemnitor of any obligation to such claimindemnify the Indemnitee, except to the extent that, such failure to notify prejudices the Indemnifying Party shall have adversely prejudiced the Indemnifying PartyIndemnitor. In additionThereupon, the Indemnified Party shall provide Indemnitor will have the right, upon written notice (the “Defence Notice”) to the Indemnifying Party as promptly as practicable thereafter such information and documentation as may be reasonably requested Indemnitee within 30 days after receipt by the Indemnifying Party to support and verify the claim asserted, so long as such disclosure would not violate the attorney-client privilege Indemnitor of notice of the Indemnified Party. The Indemnifying Third Party may, at its option, undertake the defense thereof by representatives of its own choosing; provided, that any Indemnified Proceeding (or sooner if such Third Party may, in any eventProceeding so requires) to conduct, at its own expense, monitor the defence against the Third Party Proceeding in its own name or, if necessary, in the name of the Indemnitee.
(2) The Defence Notice will specify the counsel the Indemnitor will appoint to defend such Third Party Proceeding (the “Defence Counsel”), and participate in, but not control, the defense of such claim. If the Indemnifying Party within thirty (30) days after notice of any such Claim fails to assume the defense of such Claim, the Indemnified Party Indemnitee will (upon further notice to the Indemnifying Party) have the right to undertake approve the defenseDefence Counsel, compromise or settlement which approval will not be unreasonably withheld. Any Indemnitee will have the right to employ separate counsel in any Third Party Proceeding and/or to participate in the defence thereof, but the fees and expenses of such claim on behalf counsel will not be included as part of any Losses incurred by the Indemnitee unless (i) the Indemnitor failed to give the Defence Notice, including the acknowledgement and for agreement to be set out therein within the account and riskprescribed period, and at (ii) such Indemnitee has received an opinion of counsel, reasonably acceptable to the expenseIndemnitor, to the effect that the interests of the Indemnifying Party; provided, however, that as long as Indemnitee and the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate Indemnitor with respect to the defense Third Party Proceeding are sufficiently adverse to prohibit the representation by the same counsel of both parties under applicable ethical rules, or prosecution (iii) the employment of such Claim. Such cooperation shall include providing to counsel at the Indemnifying Party, after reasonable notice expense of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation Indemnitor has been specifically authorized by the Indemnitor. The party conducting the defence of any materials provided hereunder.
(b) Anything in this Section 9.3 to Third Party Proceeding will keep the contrary notwithstanding, the Indemnifying Party shall other party apprised of all significant developments and will not enter into any settlement or settlement, compromise of any action, suit or proceeding or consent to judgment with respect to such Third Party Proceeding unless the entry of any judgment (i) which does not include as an unconditional term hereof Indemnitor and the delivery by the claimant or plaintiff to the Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages without the prior written consent of the Indemnified PartyIndemnitee consent, which consent shall will not be unreasonably withheld or delayedwithheld.
Appears in 1 contract
Third Party Indemnification. The respective obligations and liabilities of VALENT the Seller and PURCHASER Buyer (as applicable, the “Indemnifying Partyindemnifying party”) to indemnify the Buyer Indemnified Parties and the Seller Indemnified Parties, as appropriate (the “party to be indemnified”), under Section 9.1 or Section 9.2 hereof, respectively, Sections 6.1 and 6.2 with respect to Damages Claims resulting from the assertion of liability by third parties (each, as the case may be, a “Claim”), shall be subject to the following terms and conditions:
(a) Promptly As soon as practicable after receipt by an Indemnified Party of notice by a third party of commencement of any complaint action evidenced by service of process or other legal pleading, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any action or proceeding with respect such action, if materially prejudicial to which its ability to defend such Indemnified Party may be entitled to receive payment from the other action, shall relieve such indemnifying party for Damages (a “Claims Event”), such Indemnified Party shall, within thirty (30) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability under this Agreement with respect to such claim, except to the extent that, such failure party to notify the Indemnifying Party be indemnified. The indemnifying party shall have adversely prejudiced the Indemnifying Party. In addition, the Indemnified Party shall provide right 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, choosing and at its own expense, monitor and ; provided that the party to be indemnified may participate in, but not controlin the defense with counsel of its own choice, the defense fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such claim. If fees and expenses, (ii) the Indemnifying Party within thirty (30) days after notice of any such Claim fails indemnifying party has failed to assume the defense of such Claimaction or (iii) the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the Indemnified Party indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the Indemnifying Partyindemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk, risk of the indemnifying party and at the indemnifying party’s expense, subject to the right of the Indemnifying Partyindemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Notwithstanding the foregoing, the indemnifying party shall not settle any claim without the prior consent of the party to be indemnified; provided, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate with respect to the defense or prosecution of such Claim. Such cooperation shall include providing to the Indemnifying Party, after reasonable notice of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder.
(b) Anything in this Section 9.3 to the contrary notwithstanding, 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 hereof the delivery by the claimant or plaintiff to the Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayedwithheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other with respect to any claim as described in this Section 6.4.
Appears in 1 contract
Samples: Purchase Agreement (Wound Management Technologies, Inc.)
Third Party Indemnification. The obligations of VALENT and PURCHASER (as applicable, the “Indemnifying Party”) any indemnifying party to indemnify Indemnified Parties any indemnified party under Section 9.1 or Section 9.2 hereof, respectively, this Article VI with respect to Buyer Damages or Seller Damages, as the case may be, resulting from the assertion of liability by third parties (each, as the case may be, a “Claim”), shall be subject to the following terms and conditions:
(a) Promptly after receipt by an Indemnified Party Any party against whom any Claim is asserted shall give the party required to provide indemnity hereunder written notice, setting forth with reasonable specificity the facts and circumstances of notice by a third which such party has received notice, of any complaint or the commencement of any action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from the other party for Damages (a “Claims Event”), such Indemnified Party shall, within thirty (30) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, Claim promptly after learning of such complaint or of Claim, and if the commencement of party giving such action or proceeding; providednotice is an indemnified party, however, that specifying the failure to so notify basis hereunder upon which the Indemnifying Party shall not relieve the Indemnifying Party from liability under this Agreement with respect to such claim, except to the extent that, such failure to notify the Indemnifying Party shall have adversely prejudiced the Indemnifying Party. 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 indemnified party’s claim for indemnification is asserted, so long as such disclosure would not violate and the attorney-client privilege of the Indemnified Party. The Indemnifying Party may, indemnifying party may at its option, option undertake the defense thereof by representatives of its own choosing; provided. Failure to give prompt notice of a Claim hereunder shall not affect the indemnifying party’s obligations under this Article VI, except to the extent that any Indemnified Party may, in any event, at its own expense, monitor and participate in, but not control, the defense of indemnifying party is actually prejudiced by such claimfailure to give prompt notice. If the Indemnifying Party indemnifying party, within thirty (30) days after notice of any such Claim Claim, fails to assume the defense of such Claim, the Indemnified Party will indemnifying party shall lose its right to contest, defend, litigate and settle such a Claim and the indemnified party against whom such claim has been made shall, without prejudice to its right, if any, of indemnification hereunder, (upon further notice to the Indemnifying Partyindemnifying 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 reasonable expense, of the Indemnifying Partyindemnifying party, subject to the right of the indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof. If, pursuant to the preceding sentence, the indemnified party so contests, defends, litigates or settles a Claim for which it is entitled to indemnification hereunder, the indemnified party shall, subject to any defense that the indemnifying party may have that it is not obligated to provide indemnity, be reimbursed by the indemnifying party for the reasonable attorneys’ fees and other expenses of contesting, defending, litigating and settling the Claim which are incurred from time to time, promptly following the presentation to the indemnifying party of itemized bills for such attorneys’ fees and other expenses.
(b) Except as herein provided, the indemnified party shall not, and the indemnifying party shall, have the right to contest, defend, litigate or settle such Claim, if the defense of a Claim is so tendered and within 30 days thereafter the indemnifying party accepts such tender and acknowledges in writing (but without waving any defenses it may have that it is not obligated to provide indemnity) its indemnification obligation. The indemnified party shall have the right to be represented by counsel at its own expense in any such contest, defense, litigation or settlement conducted by the indemnifying party. The indemnifying party shall lose its right to contest, defend, litigate and settle the Claim if it shall fail to diligently contest the Claim. So long as the indemnifying party has not lost its right to contest, defend, litigate and settle as herein provided, the indemnifying party shall have the right to contest, defend and litigate the Claim and shall have the right to enter into any settlement of any Claim; provided, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate with respect to the defense or prosecution of such Claim. Such cooperation shall include providing to the Indemnifying Party, after reasonable notice of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder.
(b) Anything in this Section 9.3 to the contrary notwithstanding, the Indemnifying Party shall indemnifying party may 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 hereof the delivery by the claimant or plaintiff to the Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages Claim without the prior written consent of the Indemnified Partyindemnified party, which consent shall not to be unreasonably withheld or delayed, if pursuant to or as a result of such settlement, (i) injunctive or other equitable relief would be imposed against the indemnified party or (ii) such settlement would or could reasonably be expected to lead to any liability or create any financial or other obligation on the part of the indemnified party. The indemnifying party shall not be entitled to assume control of a Claim and shall pay the reasonable fees and expenses of counsel retained by the indemnified party if (A) the Claim relates to or arises in connection with any criminal proceeding, action, indictment or allegation, (B) the Claim seeks injunctive or other equitable relief or (C) the indemnified party in its notice to the indemnifying party of the Claim states that, based on advice of counsel, it believes that its interests in the Claim is or can reasonably be expected to be adverse to the interests of the indemnifying party.
Appears in 1 contract
Samples: Asset Purchase Agreement (Higher One Holdings, Inc.)
Third Party Indemnification. The obligations of VALENT and PURCHASER (as applicable, the “Indemnifying Party”) any indemnifying party to indemnify Indemnified Parties any indemnified party under Section 9.1 or Section 9.2 hereof, respectively, this Article IX with respect to Buyer Damages resulting from the assertion of liability by third parties (eachor Seller Damages, as the case may be, resulting from the assertion of a “Buyer Claim or of a claim under Section 9.10, respectively, by third parties (including Governmental Entities) (a "Claim”"), shall be subject to the following terms and conditions:
(a) Promptly after receipt by an Indemnified Party of Any party against whom any Claim is asserted shall give the party required to provide indemnity hereunder written notice by a third party of any complaint such Claim promptly after learning of such Claim (with such notice satisfying the requirements of Section 9.2(b)(vi) or the commencement of any action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from the other party for Damages (a “Claims Event”9.3(b)(vi), such Indemnified Party shall, within thirty (30) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Partycase may be), of such complaint or of and the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability under this Agreement with respect to such claim, except to the extent that, such failure to notify the Indemnifying Party shall have adversely prejudiced the Indemnifying Party. In addition, the Indemnified Party shall provide to the Indemnifying Party as promptly as practicable thereafter such information and documentation as indemnifying party 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, option undertake the defense thereof by representatives of its own choosing; providedchoosing and shall provide written notice of any such undertaking to the indemnified party. Failure to give prompt written notice of a Claim hereunder shall not affect the indemnifying party's obligations under this Article IX, except to the extent that any Indemnified Party maythe indemnifying party is actually prejudiced by such failure to give prompt written notice. The indemnified party shall, and shall cause its employees and representatives to, cooperate with the indemnifying party in any event, at its own expense, monitor and participate in, but not control, connection with the settlement or defense of such claimClaim and shall provide the indemnifying party with all available information and documents concerning such Claim. The indemnifying party shall provide the indemnified party with copies of all non-privileged communications and other information in respect of the Claim. If the Indemnifying Party indemnifying party, within thirty (30) days after written notice of any such Claim Claim, fails to assume the defense of such Claim, or, after assuming defense, negligently fails to defend and fails to call after reasonable written notice of the Indemnified Party will same, the indemnified party against whom such claim has been made shall (upon further written notice to the Indemnifying Partyindemnifying 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 Indemnifying Party; providedindemnifying party, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate with respect subject to the right of the indemnifying party to assume the defense or prosecution of such Claim. Such cooperation shall include providing Claim at any time prior to settlement, compromise or final determination thereof upon written notice to the Indemnifying Party, after reasonable notice of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunderindemnified party.
(b) Anything in this Section 9.3 9.4 to the contrary notwithstanding, (i) the Indemnifying Party 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 proceeding, or consent to the entry of any judgment (i) which does not include as an unconditional term hereof the delivery by the claimant or plaintiff to the Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding or (ii) for relief other than monetary damages to be borne by the indemnifying party, without the prior written consent of the Indemnified Partyindemnified party, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
Appears in 1 contract
Samples: Purchase and Sale Agreement (International Paper Co /New/)
Third Party Indemnification. The obligations of VALENT and PURCHASER (as applicable, the “Indemnifying Party”) any indemnifying party to indemnify Indemnified Parties any indemnified party under Section 9.1 or Section 9.2 hereof, respectively, this Article IX with respect to Buyer Damages resulting from the assertion of liability by third parties (eachor Seller Damages, as the case may be, resulting from the assertion of a Buyer Claim or of a claim under Section 9.10, respectively, by third parties (including Governmental Entities) (a “Claim”), shall be subject to the following terms and conditions:
(a) Promptly after receipt by an Indemnified Party of Any party against whom any Claim is asserted shall give the party required to provide indemnity hereunder written notice by a third party of any complaint such Claim promptly after learning of such Claim (with such notice satisfying the requirements of Section 9.2(b)(vi) or the commencement of any action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from the other party for Damages (a “Claims Event”9.3(b)(vi), such Indemnified Party shall, within thirty (30) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Partycase may be), of such complaint or of and the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability under this Agreement with respect to such claim, except to the extent that, such failure to notify the Indemnifying Party shall have adversely prejudiced the Indemnifying Party. In addition, the Indemnified Party shall provide to the Indemnifying Party as promptly as practicable thereafter such information and documentation as indemnifying party 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, option undertake the defense thereof by representatives of its own choosing; providedchoosing and shall provide written notice of any such undertaking to the indemnified party. Failure to give prompt written notice of a Claim hereunder shall not affect the indemnifying party’s obligations under this Article IX, except to the extent that any Indemnified Party maythe indemnifying party is actually prejudiced by such failure to give prompt written notice. The indemnified party shall, and shall cause its employees and representatives to, cooperate with the indemnifying party in any event, at its own expense, monitor and participate in, but not control, connection with the settlement or defense of such claimClaim and shall provide the indemnifying party with all available information and documents concerning such Claim. The indemnifying party shall provide the indemnified party with copies of all non-privileged communications and other information in respect of the Claim. If the Indemnifying Party indemnifying party, within thirty (30) days after written notice of any such Claim Claim, fails to assume the defense of such Claim, or, after assuming defense, negligently fails to defend and fails to call after reasonable written notice of the Indemnified Party will same, the indemnified party against whom such claim has been made shall (upon further written notice to the Indemnifying Partyindemnifying 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 Indemnifying Party; providedindemnifying party, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate with respect subject to the right of the indemnifying party to assume the defense or prosecution of such Claim. Such cooperation shall include providing Claim at any time prior to settlement, compromise or final determination thereof upon written notice to the Indemnifying Party, after reasonable notice of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunderindemnified party.
(b) Anything in this Section 9.3 9.4 to the contrary notwithstanding, (i) the Indemnifying Party 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 proceeding, or consent to the entry of any judgment (i) which does not include as an unconditional term hereof the delivery by the claimant or plaintiff to the Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding or (ii) for relief other than monetary damages to be borne by the indemnifying party, without the prior written consent of the Indemnified Partyindemnified party, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
Appears in 1 contract
Third Party Indemnification. The obligations of VALENT and PURCHASER (as applicable, the “Indemnifying Party”) to indemnify Indemnified Parties under Section 9.1 or Section 9.2 hereof, respectively, with respect to Damages resulting from Promptly after the assertion of liability by third parties (each, as the case may be, a “Claim”), shall be subject to the following terms and conditions:
(a) Promptly after receipt by an Indemnified Party of notice by a any third party of any complaint Third Party Claim (a “Third Party Proceeding”) against any person entitled to indemnification under this Agreement (the “Indemnitee”) that results or may result in the commencement incurrence by such Indemnitee of any action or proceeding with respect to Claims for which such Indemnified Party may Indemnitee would be entitled to receive payment from the other party for Damages (a “Claims Event”)indemnification pursuant to this Agreement, such Indemnified Party shall, within thirty Indemnitee will promptly notify the party from whom such indemnification is or may be sought (30the “Indemnitor”) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, of such complaint or Third Party Proceeding. Such notice will also specify with reasonable detail (to the extent the information is reasonably available) the factual basis for the Third Party Proceeding, the amount of the commencement Third Party Claim, or if such amount is not then determinable, a reasonable estimate of such action or proceeding; provided, however, that the likely amount of the Third Party Claim. The failure to so notify the Indemnifying Party shall promptly provide such notice will not relieve the Indemnifying Party from liability under this Agreement with respect Indemnitor of any obligation to such claimindemnify the Indemnitee, except to the extent that, such failure to notify prejudices the Indemnifying Party shall have adversely prejudiced the Indemnifying PartyIndemnitor. In additionThereupon, the Indemnified Party shall provide Indemnitor will have the right, upon written notice (the “Defence Notice”) to the Indemnifying Party as promptly as practicable thereafter such information and documentation as may be reasonably requested Indemnitee within 30 days after receipt by the Indemnifying Party to support and verify the claim asserted, so long as such disclosure would not violate the attorney-client privilege Indemnitor of notice of the Indemnified Party. The Indemnifying Third Party may, at its option, undertake the defense thereof by representatives of its own choosing; provided, that any Indemnified Proceeding (or sooner if such Third Party may, in any eventProceeding so requires) to conduct, at its own expense, monitor the defence against the Third Party Proceeding in its own name or, if necessary, in the name of the Indemnitee provided that: (a) the Indemnitor acknowledges and participate inagrees in the Defence Notice that as between the Indemnitor and the Indemnitee, but not control, it is liable to pay for all Claims arising from or relating to such Third Party Proceeding and (b) the defense Indemnitor provides to the Indemnitee adequate security (approved by the Indemnitee acting reasonably) from time to time in respect of such claimClaims. If The Defence Notice will specify the Indemnifying counsel the Indemnitor will appoint to defend such Third Party within thirty Proceeding (30) days after notice of any such Claim fails to assume the defense of such Claim“Defence Counsel”), and the Indemnified Party Indemnitee will (upon further notice to the Indemnifying Party) have the right to undertake approve the defenseDefence Counsel, compromise or settlement which approval will not be unreasonably withheld. Any Indemnitee will have the right to employ separate counsel in any Third Party Proceeding and/or to participate in the defence thereof, but the fees and expenses of such claim on behalf counsel will not be included as part of any Claims incurred by the Indemnitee unless (i) the Indemnitor failed to give the Defence Notice, including the acknowledgement and for agreement to be set out therein within the account and riskprescribed period, and at (ii) such Indemnitee has received an opinion of counsel, reasonably acceptable to the expenseIndemnitor, to the effect that the interests of the Indemnifying Party; provided, however, that as long as Indemnitee and the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate Indemnitor with respect to the defense Third Party Proceeding are sufficiently adverse to prohibit the representation by the same counsel of both parties under applicable ethical rules, or prosecution (iii) the employment of such Claim. Such cooperation shall include providing to counsel at the Indemnifying Party, after reasonable notice expense of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation Indemnitor has been specifically authorized by the Indemnitor. The party conducting the defence of any materials provided hereunder.
(b) Anything in this Section 9.3 to Third Party Proceeding will keep the contrary notwithstanding, the Indemnifying Party shall other party apprised of all significant developments and will not enter into any settlement or settlement, compromise of any action, suit or proceeding or consent to judgment with respect to such Third Party Proceeding unless the entry of any judgment (i) which does not include as an unconditional term hereof Indemnitor and the delivery by the claimant or plaintiff to the Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages without the prior written consent of the Indemnified PartyIndemnitee consent, which consent shall will not be unreasonably withheld or delayedwithheld.
Appears in 1 contract
Third Party Indemnification. The obligations of VALENT and PURCHASER (as applicable, the “Indemnifying Party”) any indemnifying party to indemnify Indemnified Parties any indemnified party under Section 9.1 or Section 9.2 hereof, respectively, 9.4 with respect to Purchaser Damages or Seller Damages, as the case may be, resulting from the assertion of liability by third parties (each, as the case may be, a including Governmental Entities) (an “Indemnification Claim”), shall be subject to the following terms and conditions, and the limitations of the first sentence of Section 9.4.A and Section 9.4.D(i) shall not apply to any such Indemnification Claims:
(ai) Promptly Any party against whom any Indemnification Claim is asserted shall give the party required to provide indemnity hereunder written notice of any such Indemnification Claim promptly after receipt by an Indemnified Party learning of such Indemnification Claim (with such notice by satisfying the requirements of Section 12.1), and to the extent such matter involves a third party of any complaint or the commencement of any action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from the other party for Damages (a “Claims Event”), such Indemnified Party shall, within thirty (30) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability under this Agreement with respect to such claim, except to the extent that, such failure to notify the Indemnifying Party shall have adversely prejudiced the Indemnifying Party. 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 indemnifying party may, at its option, undertake the defense thereof by representatives of its own choosingchoosing and shall provide written notice of any such undertaking to the indemnified party; providedprovided that the indemnifying party shall demonstrate to the reasonable satisfaction of the indemnified party its financial capability to undertake the defense. Failure to give prompt written notice of an Indemnification Claim hereunder shall not affect the indemnifying party’s obligations under this Section 9.4, except to the extent that any Indemnified Party may, in any eventthe indemnifying party is actually prejudiced by such failure to give prompt written notice. The indemnified party, at its own the indemnifying party’s expense, monitor shall, and participate inshall cause its employees and representatives to, but not control, reasonably cooperate with the indemnifying party in connection with the settlement or defense of such claimIndemnification Claim and shall provide the indemnifying party with all available information and documents concerning such Indemnification Claim. If the Indemnifying Party indemnifying party, within thirty (30) days after written notice of any such Claim Indemnification Claim, fails to assume the defense of such Indemnification Claim, the Indemnified Party will indemnified party against whom such claim has been made shall (upon further written notice to the Indemnifying Partyindemnifying 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 Indemnifying Party; provided, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate with respect to the defense or prosecution of such Claim. Such cooperation shall include providing to the Indemnifying Party, after reasonable notice of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunderindemnifying party.
(bii) Anything in this Section 9.3 9.4 to the contrary notwithstanding: (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 indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding proceeding, or consent to the entry of any judgment (i) which does not include as an unconditional term hereof the delivery by the claimant or plaintiff to the Indemnified Parties of a written release from all liability in respect of such actionfor relief, suit or proceeding or (ii) for other than monetary damages without the prior written consent of the Indemnified Partyindemnified party, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
Appears in 1 contract
Third Party Indemnification. The obligations of VALENT and PURCHASER (as applicable, the “Indemnifying Party”) Seller to indemnify Indemnified Parties the Buyer Indemnitees under Section 9.1 or Section 9.2 hereof, respectively, hereof with respect to Buyer Damages resulting from the assertion of liability by third parties (each, as the case may be, a “"Claim”"), shall will be subject to the following terms and conditions:
(a) Promptly after receipt by an Indemnified Party of Any party against whom any Claim is asserted will give the party required to provide indemnity hereunder written notice by a third party of any complaint or the commencement of any action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from the other party for Damages (a “Claims Event”), such Indemnified Party shall, within thirty (30) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, Claim promptly after learning of such complaint or of Claim, and the commencement of such action or proceeding; provided, however, that indemnifying party may at its option undertake the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability under this Agreement with respect to such claim, except to the extent that, such failure to notify the Indemnifying Party shall have adversely prejudiced the Indemnifying Party. 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 maydefense thereof, at its optionown expense, undertake the defense thereof by representatives of its own choosing; provided. Failure to give prompt notice of a Claim hereunder shall not affect the indemnifying party's obligations under this Section 9.3, that any Indemnified Party may, in any event, at its own expense, monitor and participate in, but not control, except to the defense of extent the indemnifying party is materially prejudiced by such claimfailure to give prompt notice. If the Indemnifying Party indemnifying party, within thirty (30) 30 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 Indemnified Party Buyer Indemnitee against whom such claim has been made will (upon further notice to the Indemnifying Partyindemnifying 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 Indemnifying Party; providedindemnifying party, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate with respect subject to the right of the indemnifying party to assume the defense or prosecution of such ClaimClaim at any time prior to settlement, compromise or final determination thereof. Such cooperation shall include providing to the Indemnifying Party, after reasonable notice of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder.72 81
(b) Anything in this Section 9.3 to the contrary notwithstanding, the Indemnifying Party 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 hereof thereof the delivery by the claimant or plaintiff to the Indemnified Parties Buyer 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 Indemnified PartyBuyer Indemnitee, which consent shall not be unreasonably withheld or delayedwithheld.
Appears in 1 contract
Third Party Indemnification. The obligations of VALENT and PURCHASER the Seller, or the (as ---------------------------- applicable, the “Indemnifying Party”"INDEMNIFYING PARTY") to indemnify Indemnified Parties under Section 9.1 13.1 or Section 9.2 13.2 hereof, respectively, with respect to Damages resulting from the assertion of liability by third parties (each, as the case may be, a “Claim”"CLAIM"), shall be subject to the following terms and conditions:
(a) 13.4.1 Promptly after receipt by an Indemnified Party of notice by a third party of any complaint or the commencement of any action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from the other party for Damages (a “Claims Event”)Damages, such Indemnified Party shall, within thirty ten (3010) days, notify VALENT the Seller, or PURCHASER, the Purchaser as the appropriate Indemnifying Party, of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability under this Agreement with respect to such claimclaim only if, except and only to the extent that, such failure to notify the Indemnifying Party shall have adversely prejudiced results in the forfeiture by the Indemnifying PartyParty 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 verify. the claim asserted, so long as such disclosure would not violate the attorney-client privilege of the Indemnified Party. The Indemnifying Party may, may at its option, 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 Indemnifying Party within thirty (30) days after notice of any such Claim fails to assume the defense of such Claim, the Indemnified Party Parties will (upon further notice to the 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 Indemnifying Party; provided, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate with respect to the defense or prosecution of such Claim. Such cooperation shall include providing to the Indemnifying Party, after reasonable notice of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder.
(b) 13.4.2 Anything in this Section 9.3 13.4 to the contrary notwithstanding, 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 hereof the delivery by the claimant or plaintiff to the Indemnified Parties of a written release from fkom all liability in respect of such action, suit or proceeding proceeding; or (iib) for other than monetary damages without the prior written consent of the Indemnified Indemnifying Party, which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Third Party Indemnification. The obligations of VALENT and PURCHASER (as applicable, the “any Indemnifying Party”) Party to indemnify any Indemnified Parties Party under Section 9.1 or Section 9.2 hereof, respectively, this Article XIV with respect to Buyer Damages or Seller Damages, as the case may be, resulting from the assertion of liability by third parties (each, as the case may be, a “Claim”), shall will be subject to the following terms and conditions:
14.7.1 Any party against whom any Claim is asserted (athe “Indemnified Party”) Promptly after receipt by an Indemnified Party of will give the party required to provide indemnity hereunder the “Indemnifying Party”) written notice by a third party of any complaint or the commencement of any action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from the other party for Damages (a “Claims Event”), such Indemnified Party shall, within thirty (30) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, Claim promptly after learning of such complaint or of the commencement of such action or proceeding; providedClaim, however, that the failure to so notify and the Indemnifying Party shall not relieve the Indemnifying Party from liability under this Agreement with respect to such claim, except to the extent that, such failure to notify the Indemnifying Party shall have adversely prejudiced the Indemnifying Party. 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, option undertake the defense thereof by representatives of its own choosing; provided. Failure to give prompt notice of a Claim hereunder shall not affect the Indemnifying Party’s obligations under this Section, except to the extent that any Indemnified the Indemnifying Party may, in any event, at its own expense, monitor and participate in, but not control, the defense of is materially prejudiced by such claimfailure to give prompt notice. If the Indemnifying Party Party, within thirty (30) days after notice of any such Claim Claim, fails to assume the defense of such Claim, the Indemnified Party against whom such claim has been made will (upon further notice to the 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 Indemnifying Party; provided, however, that as long as subject to the right of the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate with respect to assume the defense or prosecution of such Claim. Such cooperation shall include providing Claim at any time prior to the Indemnifying Partysettlement, after reasonable notice of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereundercompromise or final determination thereof.
(b) 14.7.2 Anything in this Section 9.3 to the contrary notwithstanding, (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 hereof the delivery by the claimant or plaintiff to the Indemnified Parties 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 Indemnified Party, which consent shall not be unreasonably withheld withheld.
14.7.3 If the Indemnifying Party shall not assume the defense of any such claim by a third party, or delayedlitigation resulting therefrom, after receipt of notice from the Indemnified Party, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate.
14.7.4 If the Indemnifying Party shall not, within thirty (30) days after its receipt of the notice required by Section 14.7 hereof, advise the Indemnified Party that the Indemnifying Party denies the right of the Indemnified Party to indemnity in respect of the claim, then the amount of such claim shall be deemed to be finally determined between the Parties hereto. If the Indemnifying Party shall notify the Indemnified Party that it disputes any claim made by the Indemnified Party, then the Parties hereto shall endeavor to settle and compromise such claim, and if unable to agree on any settlement or compromise, such claim for indemnification shall be settled by appropriate litigation, and any liability established by reason of such settlement, compromise or litigation shall be deemed to be finally determined. Any claim that is finally determined in the manner set forth above shall be paid promptly by the Indemnifying Party.
Appears in 1 contract
Samples: Asset Purchase Agreement (Matthews International Corp)
Third Party Indemnification. The obligations of VALENT and PURCHASER (as applicable, the “Indemnifying Party”) to indemnify Indemnified Parties under Section 9.1 or Section 9.2 hereof, respectively, with respect to Damages resulting from the assertion of liability by third parties (each, as the case may be, a “Claim”), shall be subject to the following terms and conditions:
(a1) Promptly after receipt the assertion by an Indemnified Party of notice by a any third party of any complaint Third Party Claim (a “Third Party Proceeding”) against any person entitled to indemnification under this Agreement (the “Indemnitee”) that results or may result in the commencement incurrence by such Indemnitee of any action Claim or proceeding with respect to Loss for which such Indemnified Party may Indemnitee would be entitled to receive payment from the other party for Damages (a “Claims Event”)indemnification pursuant to this Agreement, such Indemnified Indemnitee will promptly notify the Party shall, within thirty from whom such indemnification is or may be sought (30the “Indemnitor”) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, of such complaint or Third Party Proceeding. Such notice will also specify with reasonable detail (to the extent the information is reasonably available) the factual basis for the Third Party Proceeding, the amount of the commencement Third Party Claim, or if such amount is not then determinable, a reasonable estimate of such action or proceeding; provided, however, that the likely amount of the Third Party Claim. The failure to so notify the Indemnifying Party shall promptly provide such notice will not relieve the Indemnifying Party from liability under this Agreement with respect Indemnitor of any obligation to such claimindemnify the Indemnitee, except to the extent that, such failure to notify prejudices the Indemnifying Party shall have adversely prejudiced the Indemnifying PartyIndemnitor. In additionThereupon, the Indemnified Party shall provide Indemnitor will have the right, upon written notice (the “Defence Notice”) to the Indemnifying Party as promptly as practicable thereafter such information and documentation as may be reasonably requested Indemnitee within 30 days after receipt by the Indemnifying Party to support and verify the claim asserted, so long as such disclosure would not violate the attorney-client privilege Indemnitor of notice of the Indemnified Party. The Indemnifying Third Party may, at its option, undertake the defense thereof by representatives of its own choosing; provided, that any Indemnified Proceeding (or sooner if such Third Party may, in any eventProceeding so requires) to conduct, at its own expense, monitor the defence against the Third Party Proceeding in its own name or, if necessary, in the name of the Indemnitee provided that: (a) the Indemnitor acknowledges and participate inagrees in the Defence Notice that as between the Indemnitor and the Indemnitee, but not control, it is liable to pay for all Losses arising from or relating to such Third Party Proceeding and (b) the defense Indemnitor provides to the Indemnitee adequate security (approved by the Indemnitee acting reasonably) from time to time in respect of such claimLosses. If The Defence Notice will specify the Indemnifying counsel the Indemnitor will appoint to defend such Third Party within thirty Proceeding (30) days after notice of any such Claim fails to assume the defense of such Claim“Defence Counsel”), and the Indemnified Party Indemnitee will (upon further notice to the Indemnifying Party) have the right to undertake approve the defenseDefence Counsel, compromise or settlement which approval will not be unreasonably withheld. Any Indemnitee will have the right to employ separate counsel in any Third Party Proceeding and/or to participate in the defence thereof, but the fees and expenses of such claim on behalf counsel will not be included as part of any Losses incurred by the Indemnitee unless (i) the Indemnitor failed to give the Defence Notice, including the acknowledgement and for agreement to be set out therein within the account and riskprescribed period, and at (ii) such Indemnitee has received an opinion of counsel, reasonably acceptable to the expenseIndemnitor, to the effect that the interests of the Indemnifying Party; provided, however, that as long as Indemnitee and the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate Indemnitor with respect to the defense Third Party Proceeding are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable ethical rules, or prosecution (iii) the employment of such Claim. Such cooperation shall include providing to counsel at the Indemnifying Party, after reasonable notice expense of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation Indemnitor has been specifically authorized by the Indemnitor. The Party conducting the defence of any materials provided hereunder.
(b) Anything in this Section 9.3 to Third Party Proceeding will keep the contrary notwithstanding, the Indemnifying other Party shall apprised of all significant developments and will not enter into any settlement or settlement, compromise of any action, suit or proceeding or consent to judgment with respect to such Third Party Proceeding unless the entry of any judgment (i) which does not include as an unconditional term hereof Indemnitor and the delivery by the claimant or plaintiff to the Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages without the prior written consent of the Indemnified PartyIndemnitee consent, which consent shall will not be unreasonably withheld or delayedwithheld.
Appears in 1 contract
Third Party Indemnification. The obligations of VALENT and PURCHASER (as applicable, the “Indemnifying Party”) any indemnifying party to indemnify Indemnified Parties any indemnified party under Section 9.1 Sections 12.1 or Section 9.2 hereof, respectively, 12.2 with respect to Purchaser Damages or Seller Damages, as the case may be, resulting from the assertion of liability by third parties (each, as the case may be, a “including Governmental Entities) (an "Indemnification Claim”"), shall be subject to the following terms and conditions:
12.4.1. Any party against whom any Indemnification Claim is asserted shall give the party required to provide indemnity hereunder written notice of any such Indemnification Claim promptly after learning of such Indemnification Claim (a) Promptly after receipt by an Indemnified Party with such notice satisfying the requirements of notice by Section 12.3.3), and to the extent such matter involves a third party of any complaint or the commencement of any action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from the other party for Damages (a “Claims Event”), such Indemnified Party shall, within thirty (30) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability under this Agreement with respect to such claim, except to the extent that, such failure to notify the Indemnifying Party shall have adversely prejudiced the Indemnifying Party. 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 indemnifying party may, at its option, undertake the defense thereof by representatives of its own choosing; providedchoosing and shall provide written notice of any such undertaking to the indemnified party. Failure to give prompt written notice of an Indemnification Claim hereunder shall not affect the indemnifying party's obligations under this Article 12, except to the extent that any Indemnified Party may, in any eventthe indemnifying party is actually prejudiced by such failure to give prompt written notice. The indemnified party, at its own the indemnifying party’s expense, monitor shall, and participate inshall cause its employees and representatives to, but not control, reasonably cooperate with the indemnifying party in connection with the settlement or defense of such claimIndemnification Claim and shall provide the indemnifying party with all available information and documents concerning such Indemnification Claim. If the Indemnifying Party indemnifying party, within thirty (30) days after written notice of any such Claim Indemnification Claim, fails to assume the defense of such Indemnification Claim, the Indemnified Party will indemnified party against whom such claim has been made shall (upon further written notice to the Indemnifying Partyindemnifying 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 Indemnifying Party; provided, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate with respect to the defense or prosecution of such Claim. Such cooperation shall include providing to the Indemnifying Party, after reasonable notice of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunderindemnifying party.
(b) 12.4.2. Anything in this Section 9.3 12.4 to the contrary notwithstanding: (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 indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding proceeding, or consent to the entry of any judgment (i) which does not include as an unconditional term hereof the delivery by the claimant or plaintiff to the Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding or (ii) for relief other than monetary damages to be borne exclusively by the indemnifying party, without the prior written consent of the Indemnified Partyindemnified party, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
12.4.3. Nothing in this Agreement, the Sale Approval Order or any Ancillary Agreements including, without limitation, any right to indemnification in favor of Purchaser, shall alter or otherwise vitiate the legal effect of the bar date order and discharge injunction under a confirmation on any third party claim against Seller or DTI that would otherwise be barred or discharged thereunder. Notwithstanding anything to the contrary in this Agreement or in any Ancillary Agreement, upon receipt of any such third party claim, Seller and/or DTI, as appropriate, in its sole discretion, may elect to defend against such claim and settle or otherwise resolve such claim without Purchaser's consent.
Appears in 1 contract
Samples: Sale and Purchase Agreement
Third Party Indemnification. The obligations of VALENT and PURCHASER (as applicable, the “Indemnifying Party”) any indemnifying party to indemnify Indemnified Parties any indemnified party under Section 9.1 or Section 9.2 hereof, respectively, this Article VII with respect to Buyer Damages or Seller Damages, as the case may be, resulting from the assertion of liability by third parties (each, as the case may be, a “Claim”"CLAIM"), shall will be subject to the following terms and conditions:
(a) Promptly after receipt by an Indemnified Party of Any party against whom any Claim is asserted will give the party required to provide indemnity hereunder written notice by a third party of any complaint or the commencement of any action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from the other party for Damages (a “Claims Event”), such Indemnified Party shall, within thirty (30) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, Claim promptly after learning of such complaint or of Claim, and the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability under this Agreement with respect to such claim, except to the extent that, such failure to notify the Indemnifying Party shall have adversely prejudiced the Indemnifying Party. In addition, the Indemnified Party shall provide to the Indemnifying Party as promptly as practicable thereafter such information and documentation as indemnifying party 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, option undertake the defense thereof by representatives of its own choosing; provided, that any Indemnified Party maythe indemnifying party shall permit the indemnified party to participate in such settlement or defense through counsel chosen by the indemnified party, in any event, at its own expense, monitor provided that the fees and participate in, but not control, the defense expenses of such claimcounsel shall not be borne by the indemnifying 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 that the indemnifying party is actually prejudiced by such failure to give prompt notice. If the Indemnifying Party indemnifying party, within thirty (30) days after notice of any such Claim Claim, fails to assume the defense of such Claim, the Indemnified Party indemnified party against whom such claim has been made will (upon further notice to the Indemnifying Partyindemnifying 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 Indemnifying Party; providedindemnifying party, howeverin the exercise of its reasonable discretion, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate with respect subject to the right of the indemnifying party to assume the defense or prosecution of such Claim. Such cooperation shall include providing Claim at any time prior to the Indemnifying Partysettlement, after reasonable notice of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereundercompromise or final determination thereof.
(b) Anything in this Section 9.3 7.4 to the contrary notwithstanding, (i) the Indemnifying Party 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 hereof the delivery by the claimant or plaintiff to the Indemnified Parties 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 Indemnified Partyindemnified party, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(c) No indemnified party will, in any event, be entitled to any punitive, incidental, indirect, special or consequential damages resulting from or arising out of any claim under this Article VII.
Appears in 1 contract
Third Party Indemnification. The obligations of VALENT and PURCHASER (as applicable, the “Indemnifying Party”) Designated Stockholders to indemnify Indemnified Parties the Parent Indemnitees under Section 9.1 or Section 9.2 hereof, respectively, of this Agreement with respect to the Parent Damages and the obligations of the Parent to indemnify the Designated Stockholders Indemnitees under Section 9.3 of this Agreement with respect to the Designated Stockholders' Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a “"Claim”"), shall will be subject to the following terms and conditions:
(a) Promptly after receipt by an Indemnified Party of Any party against whom any Claim is asserted will give the indemnifying party written notice by a third party of any complaint or the commencement of any action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from the other party for Damages (a “Claims Event”), such Indemnified Party shall, within thirty (30) days, notify VALENT or PURCHASER, as the appropriate Indemnifying Party, Claim promptly after learning of such complaint or of Claim, and the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability under this Agreement with respect to such claim, except to the extent that, such failure to notify the Indemnifying Party shall have adversely prejudiced the Indemnifying Party. 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 indemnifying party may, at its option, undertake the defense thereof of such Claim by representatives of its own choosing; provided. Failure to give prompt notice of a Claim under this Agreement shall not affect the indemnifying party obligations under this Article IX, that any Indemnified Party may, in any event, at its own expense, monitor and participate in, but not control, except to the defense of extent the indemnifying party is materially prejudiced by such claimfailure to give prompt notice. If the Indemnifying Party indemnifying party, within thirty (30) 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 Indemnified Party Parent Indemnitee or the Designated Stockholder's Indemnitee, as the case may be, against whom such Claim has been made will (upon further notice to the Indemnifying Partyindemnifying 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 Indemnifying Party; providedindemnifying party, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not pay or settle any such claim. If the Indemnifying Party chooses to defend or prosecute a Claim, the Parties hereto shall cooperate with respect subject to the right of the indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or prosecution final determination of such Claim. Such cooperation shall include providing to the Indemnifying Party, after reasonable notice of the need therefor, records and information that are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder.
(b) Anything in this Section 9.3 9.4 to the contrary notwithstanding, the Indemnifying Party 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 hereof of the delivery by the claimant or plaintiff to the Indemnified Parties Designated Stockholder's Indemnitee or the Parent 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 Indemnified PartyDesignated Stockholder's Indemnitee or the Parent Indemnitee, as the case may be, which consent shall not be unreasonably withheld 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 delayeddischarge of any claim in respect of which indemnity is sought under this Article IX, 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: Merger Agreement (Grey Wolf Inc)
