Third Person Claims. The Indemnitor shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claim.
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Third Person Claims. The Indemnitor (a) Subject to Section 7.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that (i) the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and (ii) the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within fourteen (14) calendar days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages or, where Sellers is the Indemnitor, will have no continuing effect in any material respect on the Company or its business, assets or operations, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, provided that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
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Third Person Claims. The Indemnitor 10.5.1 Subject to Section 10.5.2, the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that (i) the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and (ii) the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within 14 days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity hereunder unless such consent was unreasonably withheld.
10.5.2 If any third Person claim, action or suit against any Indemnified Party is solely for money damages or, where any Seller is the Indemnitor, and such action, claim or suit will have no continuing effect in any material respect on Company or its business, assets or operations, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, provided that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
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Third Person Claims. (a) In order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party, such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the third Person claim promptly after receipt by such Indemnified Party of written notice of the third Person claim. Thereafter, the Indemnified Party shall promptly deliver to the Indemnitor copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint promptly after receipt thereof and shall deliver to the Indemnitor promptly after the receipt of such complaint copies of notices and documents (including court papers) physically served upon the Indemnified Party relating to the third Person claim. The failure of any Indemnified Party to give the Claim Notice promptly or to deliver copies of notices and documents as required by this Section 9.4 shall not affect such Indemnified Party’s rights under this Article 9 except to the extent such failure is actually prejudicial to the rights and obligations of the Indemnitor.
(b) In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right to conduct ------------------- and controlafter the receipt of notice, through counsel of at its choosing, the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that, the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense, and that if the interests of the Indemnified Party and Indemnitor are sufficiently divergent that representation by common counsel is inappropriate, the cost of the Indemnified Party’s separate counsel shall be included in the defense Indemnified Party’s claim for Losses and Expenses. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such claimlegal proceeding, action claim or suit as to which demand. To the extent the Indemnitor has so elected elects not to conduct defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, reasonably acceptable to the Indemnitor, at the expense of the Indemnitor, and control the defense thereof; (b) of such proceeding. Neither the Indemnitor shall pay for nor the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party may settle any such proceeding which settlement does not include a release in favor of the Indemnified Party or which obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been advised by counsel that there is a reasonable likelihood of conflict of interest between consummated, or the Indemnified Party and the Indemnitor; (c) Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or compromise bank cashier’s check within thirty (30) days after the date of such third Person claimnotice.
Appears in 1 contract
Samples: Asset Purchase Agreement (Fisher Communications Inc)
Third Person Claims. The Indemnitor In the event of any claim for indemnification hereunder resulting from or in connection with any claim, action or legal proceeding by a third Person, the Indemnified Persons shall give such notice thereof to Parent or the Shareholder Representative, as the case may be (the “Indemnifying Person”) as soon as reasonably practicable after such Indemnified Person has actual knowledge thereof; provided, however, that the omission by such Indemnified Person to give notice as provided herein shall not relieve any indemnification obligation under this Article X except to the extent that such omission results in a failure of actual notice to the Indemnifying Person and the Indemnifying Person is damaged as a result of such failure to give notice. At any time after receipt of such notice, the Indemnifying Person shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any such third person Person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in legal proceeding. In any such case (a) the Indemnified Party Person shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor Indemnifying Person in connection therewith; provided(b) the Indemnifying Person will not be liable to the Indemnified Person for any Expenses of separate counsel for the Indemnified Person subsequently incurred by the Indemnified Person in connection with the defense of such Third Person claim, that action or legal proceeding; and (ac) the Indemnified Party Person shall have the right to participate in the defense thereof and, at its own expense, to employ counsel, separate from the counsel employed by the Indemnifying Person, it being understood that the Indemnifying Person will retain control of the defense. Regardless of whether the Indemnifying Person assumes the defense of any third Person claim, action, or legal proceeding, the Indemnified Person shall not admit any liability with respect to, or settle, compromise or discharge, any third Person claim, action or legal proceeding without the Indemnifying Person’s written consent, which consent shall not be unreasonably withheld. If the Indemnifying Person assumes the defense of any such third Person claim, action or legal proceeding, the Indemnifying Person may not settle, compromise or discharge any claim, action or legal proceeding that seeks injunctive or equitable relief against the Indemnified Person without the consent of the Indemnified Person. If the Indemnifying Person elects not to assume the defense of any third Person claim, action or legal proceeding, the Indemnified Person may assume the defense of such claim through counsel of its choosing and such Indemnifying Person shall bear all expenses of counsel for the Indemnified Person, and may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claimlegal proceeding.
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Third Person Claims. The Indemnitor (a) Subject to Section 10.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that (i) the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and (ii) the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within fourteen (14) calendar days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages or, where Seller is the Indemnitor, will have no continuing effect in any material respect on the Company or its business, assets or operations, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, provided that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
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Third Person Claims. The Indemnitor (a) Subject to Section 11.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person claimThird Person Claim as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder, action and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that:
(i) the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such Third Person Claim as to which the Indemnified Party has so elected to conduct and control the defense thereof; and
(ii) the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or suit settle any such Third Person Claim, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within 14 days after the making of such request, to acknowledge and agree in writing that, if such Third Person Claim shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such Third Person Claim without such consent, provided, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any Third Person Claim (i) is solely for money damages (and where Sellers are the Indemnitor, the potential liability of Sellers and Equityholders exceeds the potential liability of Buyer thereunder), and (ii) where Sellers are the Indemnitor, will have no continuing effect in any material respect on the Business or the Purchased Assets, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such Third Person Claim against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunderhereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expenseit, in the defense of any such claim, action or suit Third Person Claim as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) , the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that which participation shall, unless there is a reasonable likelihood of conflict of interest between the Indemnitor and the Indemnified Party, be payable by the Indemnified Party. Notwithstanding the foregoing, the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to pay, settle or compromise any third such Third Person Claim, provided, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived. The Indemnitor shall not, without the written consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the which written consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not be unreasonably withheld), pay, compromise or settle or compromise such third any Third Person claimClaim.
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Third Person Claims. (i) Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party shall notify the Indemnitor in writing, and in reasonable detail, of the third Person claim within five business days after receipt by such Indemnified Party of written notice of the third Person claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within 10 business days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within seven business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice as provided in this paragraph (f)(i) of this Section 14 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure.
(ii) In the event any legal proceeding shall be threatened or instituted or any claim or demand shall be asserted by any Person in respect of which payment may be sought by one party hereto from the other party under the provisions of this Section 14, the Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, the facts giving rise to an alleged basis for the claim and the amount (including the method of computation of the amount) of the liability asserted against the Indemnitor by reason of the claim. In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right to conduct ------------------- and controlafter the receipt of notice, through counsel of at its choosing, the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense defense, negotiation or settlement of any such claimlegal proceeding, action claim or suit as to which demand. To the extent the Indemnitor has so elected elects not to conduct defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense thereof; (b) of such proceeding. Neither the Indemnitor shall pay for nor the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld or delayed. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been advised by counsel that there is a reasonable likelihood of conflict of interest between consummated, or the Indemnified Party and the Indemnitor; (c) Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or compromise bank cashier's check within 30 days after the date of such third Person claimnotice.
Appears in 1 contract
Samples: Stock Purchase Agreement (Belk Inc)
Third Person Claims. If a Third Person Claim is made against an Indemnified Party, the Indemnitor shall be entitled to participate therein and, to the extent that the Indemnitor shall wish, to assume the defense thereof in good faith and in a commercially reasonable manner with counsel reasonably satisfactory to the Indemnified Party, and, after notice from the Indemnitor to the Indemnified Party of such election to so assume the defense thereof, the - 49 - Indemnitor shall not be liable to the Indemnified Party for any legal expenses of other counsel or any other Losses in each case subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, that the Indemnitor will pay the legal expenses of the Indemnified Party’s separate counsel if, in the Indemnified Party’s good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by such separate counsel because a conflict exists between the Indemnitor and the Indemnified Party or because there is a reasonable probability that the Third Person Claim may materially and adversely affect the Indemnified Party or its Affiliates other than as a result of monetary damages. The Indemnified Party shall cooperate fully with the Indemnitor and its counsel in the defense against any such Third Person Claim. The Indemnified Party shall have the right to participate at its own expense in the defense of any Third Person Claim. Neither the Indemnitor, on the one hand, nor the Indemnified Party, on the other hand, shall admit liability to, or settle, compromise or discharge any Third Person Claim without the prior consent of the other (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that the Indemnitor may settle, compromise or discharge any Third Person Claim, the defense of which was assumed by the Indemnitor, if such Third Person Claim does not impose equitable remedies or any obligation on the Indemnified Party and provides only for the payment of monetary damages that are completely indemnified by the Indemnitor hereunder, includes an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liability in respect of such Third Person Claim, and the Indemnified Party would not have any further liability thereunder. In the event the Indemnitor elects not to defend any Third Person Claim, the Indemnified Party shall defend against such Third Person Claim in good faith and in a commercially reasonable manner at the cost and expense of the Indemnitor, and the Indemnitor shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by participate in such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and defense at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claim.
Appears in 1 contract
Samples: Unit Purchase Agreement
Third Person Claims. The Indemnitor (a) Subject to Section 8.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that (i) the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and (ii) the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within fourteen (14) calendar days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages or, where Seller is the Indemnitor, will have no continuing effect in any material respect on the Companies or its businesses, assets or operations, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, provided that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Third Person Claims. The Indemnitor shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) the Indemnitor shall pay for the fees and expenses of such Indemnified Party's ’s counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claim.
Appears in 1 contract
Third Person Claims. The (a) In order for an Indemnified Party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party (a "Third Person Claim"), such Indemnified Party must notify the Indemnitor in writing of the Third Person Claim within 10 days after receipt by such Indemnified Party of written notice thereof. Any notice of a Third Person Claim shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, the facts giving rise to an alleged basis for the claim and (if then known) the amount of the liability asserted against the Indemnitor by reason of the claim. Following such notice of a Third Person Claim, the Indemnified Party shall deliver to the Indemnitor, within five business days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating thereto. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a Third Person Claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within seven business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the Third Person Claim.
(b) In the event any legal proceeding shall be threatened or instituted or any claim or demand shall be asserted in respect of a Third Party Claim, the Indemnitor shall have the sole and absolute right to conduct ------------------- and controlafter the receipt of the notice required by Section 7.4(a), through counsel of at its choosing, the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any such proceeding, claim or demand; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense defense, negotiation or settlement of any such claimlegal proceeding, action claim or suit as to which demand. To the extent the Indemnitor has so elected elects not to conduct defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense thereof; (b) of such proceeding. Neither the Indemnitor shall pay for nor the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, which consent shall not be unreasonably withheld. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been advised by counsel that there is a reasonable likelihood of conflict of interest between consummated, or the Indemnified Party and the Indemnitor; (c) Indemnitor shall arrive at an agreement with respect to each separate matter alleged to be indemnified by the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or compromise bank cashier's check within 30 days after the date of such third Person claimnotice.
Appears in 1 contract
Samples: Contribution Agreement (Moneygram Payment Systems Inc)
Third Person Claims. The Indemnitor (a) Subject to Section 11.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such the Indemnified Party from any Indemnitor hereunderthe Indemnitor, and and, in any such case case, the Indemnified Party Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor Indemnified Party in connection therewith; providedPROVIDED, HOWEVER, that (a) the Indemnified Party Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor Indemnified Party has so elected to conduct and control the defense thereof; and PROVIDED FURTHER that the Indemnified Party shall not, without the written consent of the Indemnitor (b) which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall pay for fail, within 14 days after the fees and expenses making of such Indemnified Party's counsel request, to the extent that acknowledge and agree in writing that, if such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) claim, action or suit shall be adversely determined, the Indemnitor shall not have the right has an obligation to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right provide indemnification hereunder to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as Notwithstanding the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderpreceding sentence, the Indemnified Party shall not have the right to pay, settle or compromise any such claim, action or suit without such consent; PROVIDED, HOWEVER, that in such event the Indemnified Party shall waive any right to indemnification hereunder therefor unless such consent shall have been unreasonably withheld.
(b) If any third Person claim., action or suit against any Indemnified Party shall be solely for money damages or, when Quixote and/or DMI shall be the Indemnitor, could have no continuing effect in any material respect on the Business or the Purchased Assets, then the Indemnitor shall A-45
Appears in 1 contract
Third Person Claims. The Indemnitor (a) Subject to Section 8.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person claim, action or suit Third Person Claim against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, however, that the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such Third Person Claim as to which the Indemnified Party has so elected to conduct and control the defense thereof; and provided further, however, that the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld or delayed), pay, compromise or settle any such Third Person Claim.
(b) If any Third Person Claim against any Indemnified Party is solely for money damages or, where Seller, Seller Subsidiary or any Selling Party is the Indemnitor, will have no material continuing adverse effect on the Business or the Purchased Assets, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such Third Person Claim against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if (i) the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and (ii) any compromise, discharge or settlement of such Third Person Claim constitutes a complete and unconditional discharge and release by such third Person of such Third Person Claim against any Indemnified Party or is made with the written consent of the Indemnified Party. In any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, however, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit Third Person Claim as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claim.
Appears in 1 contract
Third Person Claims. The Indemnitor (a) Subject to Section 9.05(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor Indemnified Party in connection therewith; provided, that (ai) the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit (including, without limitation, any audit or administrative or judicial proceeding related to Taxes) as to which the Indemnified Party has so elected to conduct and control the defense thereof; and (ii) the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit (including, without limitation, any audit, assessment, or adjustment related to Taxes), except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within 14 days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent was unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages (other than Taxes) or, where Company or any Company Stockholder is the Indemnitor, will have no continuing effect in any material respect on the Company or its business, assets, operations or Tax liabilities, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim (other than claims for Taxes, which shall not be settled or compromised without the consent of the Indemnified Party, which consent will not be unreasonably withheld), action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith (at the Indemnitor’s expense) and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided that the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Samples: Merger Agreement (Geo Group Inc)
Third Person Claims. The Indemnitor (a) Subject to Section 10.7(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and provided, further, that the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within fourteen (14) days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages (and, where a Seller or the Shareholder is the Indemnitor, such claim, action or suit will have no continuing effect in any material respect on the Licenses), then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Samples: Agreement for Purchase and Sale of Licenses (Leap Wireless International Inc)
Third Person Claims. The Indemnitor Subject to Section 9.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person claim, action or suit Third Person Claim against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that: the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such Third Person Claim as to which the Indemnified Party has so elected to conduct and control the defense thereof; with respect to Third Person Claims, the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such Third Person Claim for an amount of up to and including $500,000, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within 14 days after the making of such request, to acknowledge and agree in writing that, if such Third Person Claim shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party; and the Indemnified Party shall not, without the written consent of the Indemnitor, pay, compromise or settle any Third Person Claim for an amount in excess of $500,000. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such Third Person Claim without such consent, provided, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder, unless under clause (2) of this Section 9.4(a)(2) such consent is unreasonably withheld. If any Third Person Claim against any Indemnified Party is solely for money damages or, where Seller is the Indemnitor, will have no continuing effect in any material respect on the Business or the BP Assets, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such Third Person Claim against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit Third Person Claim as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Third Person claimClaim, provided, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Third Person Claims. In the event that any claim for which a party providing indemnification (the "Indemnifying Party") would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the "Indemnified Party") is asserted against or sought to be collected by a third person, the Indemnified Party shall promptly notify the Indemnifying Party of such claim, specifying the nature of such claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (the "Claim Notice"). The Indemnitor Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claim; provided, however, that the Indemnified party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires to defend against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to conduct ------------------- and defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, through counsel of any such defense or settlement, it may do so at its choosing, own cost and expense. If the defense, compromise or settlement of any third person Indemnifying Party disputes its liability with respect to such claim, action or suit elects not to defend against any Indemnified Party such claim, whether by not giving timely notice as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunderprovided above or otherwise, and in any such case the Indemnified Party shall cooperate in connection therewith have the right but not the obligation to defend against such claim, and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense amount of any such claim, action or suit if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which the Indemnitor has so elected such defense is unsuccessful, shall be conclusively deemed to conduct and control the defense thereof; (b) the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is be a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent liability of the Indemnified Indemnifying Party unless such settlement hereunder (i) releases subject, if it has timely disputed liability, to a determination that the Indemnified Party from all past and future disputed liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought is covered by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claimthis Article X).
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Third Person Claims. The Indemnitor (a) Subject to Section 12.4(b), the ------------------- --------------- Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that the -------- Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and provided, -------- further, that the Indemnified Party shall not, without the written consent of ------- the Indemnitor, pay, compromise or settle any such claim, action or suit if the Indemnitor has acknowledged and agreed in writing that the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof (subject to the limitations set forth in Section 12.1 or 12.2, as the ------------ ---- case may be), in which case the Indemnitor shall have the right to conduct and control the defense of such claim. Notwithstanding the foregoing, if the Indemnified Party pays, settles or compromises any such claim, action or suit without seeking the consent of the Indemnitor, the Indemnified Party shall be deemed to have waived any right to indemnity therefor hereunder.
(b) If (A) any Buyer Group Member is seeking indemnification from any Tribune Group Member pursuant to Section 12(a)(iv) or (B) if any third Person ----------------- claim, action or suit against any Indemnified Party is solely for money damages or, where Tribune is the Indemnitor, will have no continuing effect in any material respect on the Company, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof (subject to the limitations set forth in Section 12.1 or 12.2, as the ------------ ---- case may be), and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by -------- it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that -------- in such event the Indemnified Party shall waive any right to indemnity therefor hereunder.
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Third Person Claims. The Indemnitor below paragraphs (A) through (F) shall be applicable to THIRD PERSON CLAIMS against a PARTY and/or its AFFILIATES.
(A) Within forty-five (45) days after receipt by an INDEMNITEE of written NOTICE of the assertion of a CLAIM or the commencement of any action, litigation or proceeding by any THIRD PERSON (a "THIRD PERSON CLAIM") with respect to any matter for which indemnification is or may be owing pursuant to Section 12.2 or 12.3, the INDEMNITEE shall give a NOTICE OF CLAIM to the INDEMNITOR and shall thereafter keep the INDEMNITOR reasonably informed with respect thereto.
(B) The INDEMNITOR shall have the right to conduct ------------------- and controlright, through counsel of at its choosing, the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it option and at its own expense, to participate in or, by giving written NOTICE to the INDEMNITEE no later than thirty (30) days after delivery of the NOTICE OF CLAIM, to take exclusive control of (after acknowledging its obligation to provide indemnification under this Article XII for such CLAIM), the defense, negotiations and/or settlement of any such THIRD PERSON CLAIM with counsel reasonably satisfactory to the INDEMNITEE, whereupon the INDEMNITOR shall assume all past and future responsibility for any CLAIMS incurred by the INDEMNITEE with respect to such THIRD PERSON CLAIM.
(C) The INDEMNITEE shall have the right to participate in the defense, negotiation and/or settlement of any such THIRD PERSON CLAIM with counsel of its own choosing; provided that after NOTICE from the INDEMNITOR to the INDEMNITEE of the INDEMNITOR's election to take control of the defense, negotiation and/or settlement of any THIRD PERSON CLAIM, the INDEMNITOR shall not be liable to the INDEMNITEE for any legal or other expenses incurred by the INDEMNITEE on its own volition in connection with the defense, negotiation and/or settlement thereof other than reasonable costs of investigation.
(D) Each PARTY agrees to cooperate with and render to the other PARTY such assistance as may reasonably be requested in order to insure the proper and adequate defense of any such THIRD PERSON CLAIM or proceeding which assistance shall include, without limitation, making appropriate personnel reasonably available for any discovery or trial.
(E) If the INDEMNITOR fails or refuses to undertake the defense of any such claimTHIRD PERSON CLAIM within thirty (30) days after delivery of the NOTICE OF CLAIM, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) the Indemnitor INDEMNITEE shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to take exclusive control of the defense, negotiation and/or settlement of such THIRD PERSON CLAIM at the INDEMNITOR's expense.
(F) Neither the INDEMNITOR nor the INDEMNITEE shall settle or compromise any third Person claim THIRD PERSON CLAIM without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the other, which consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claimbe unreasonably withheld.
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Third Person Claims. (a) In the event of any claim for indemnification hereunder resulting from or in connection with any claim or legal proceeding by a third Person, the Indemnified Persons shall, if possible, give notice thereof to the Indemnitor not later than 14 days after receipt of a written claim or notice; provided, however, that, so long as the Indemnified Person has provided a good faith notice within the time periods set out in Sections 10.1 and 10.2 , the omission by such Indemnified Person to give notice as provided herein shall not relieve the Indemnitor of its indemnification obligation under this Article X except to the extent that the Indemnifying Person is materially damaged as a result of such failure to give notice. The Indemnitor shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party Person as to which indemnification will be sought by such any Indemnified Party Person from any Indemnitor hereunder, if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor is obligated to provide indemnification to the Indemnified Person in respect thereof, and in any such case the Indemnified Party Person shall reasonably cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that that:
(a1) subject to the succeeding clause (2), the Indemnified Party Person may participate, through counsel chosen by it in its sole discretion and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; ;
(2) in the event the Indemnitor does not comply with this Section 10.4 or does not or ceases to conduct the defense of such claim actively and diligently (following notice thereof by the Indemnified Party and a reasonable opportunity to cure by the Indemnitor), (a) the Indemnified Party may defend against, and with the prior written consent of the Indemnitor (which consent shall not be unreasonably withheld or delayed) consent to the entry of any judgment or enter into any settlement with respect to, such claim, (b) the Indemnitor shall pay will reimburse the Indemnified Party promptly and periodically for the costs of defending against such claim, including reasonable attorneys’ fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor will remain responsible for any Losses or Expenses the Indemnified Party may suffer as a result of such claim to the full extent provided in Section 10.1 or Section 10.2, as the case may be.
(3) without the prior written consent of the Indemnified Person, the Indemnitor will not enter into any settlement of any third Person claim which would lead to (a) any criminal liability or (b) civil liability or create any financial or other obligation on the part of the Indemnified Person which is not paid or reimbursed in full by the Indemnitor on account of its indemnification obligations hereunder. Notwithstanding the foregoing, the Indemnified Person shall not have the right to pay, settle or compromise any third Person claim such claim, action or suit without the consent of the Indemnitor, provided that in such event the Indemnified Party Person shall waive any right to indemnity therefor hereunder unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claimwas unreasonably withheld.
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Third Person Claims. The Indemnitor (a) Subject to Section 8.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and provided, further, that the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within 14 days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages or, where either Seller or any Selling Party is the Indemnitor, will have no continuing effect on the Business or the Purchased Assets, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
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Third Person Claims. (a) Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party shall notify the Indemnitor in writing, and in reasonable detail, of the third Person claim within 10 Business Days after receipt by such Indemnified Party of written notice of the third Person claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within 5 Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within 10 Business Days after receipt thereof and shall deliver to the Indemnitor within 5 Business Days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice or make deliveries as provided in this Section 11.5(a) shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure.
(b) If any legal proceeding shall be threatened or instituted or any claim or demand shall be asserted by any Person in respect of which payment may be sought by one party hereto from the other party under the provisions of this Article XI, the Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor, but the failure to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall refer to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based and describe in reasonable detail (to the extent known) the facts giving rise to an alleged basis for the claim and the amount of the liability asserted against the Indemnitor by reason of the claim. In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right to conduct ------------------- and controlafter the receipt of notice, through counsel of at its choosing, the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder except to the extent the Indemnitor is also a party to such legal proceeding and joint defense would involve a conflict of interest under applicable professional standards; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. Each of the defense parties hereto agrees to cooperate fully with the other parties in connection with the defense, negotiation or settlement of any such claimlegal proceeding, action claim or suit demand and to make available to the other parties all witnesses, pertinent records, materials and information in such party’s possession or under such party’s control relating thereto as to which is reasonably required by the other parties. To the extent the Indemnitor has so elected fails to conduct defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense thereofof such proceeding; (b) provided, however, that the Indemnitor shall be obligated pursuant to this Section 11.5 to pay for only one firm of counsel (and local counsel, as appropriate) for all Indemnified Parties. Neither the fees Indemnitor nor the Indemnified Party may settle or otherwise consent to the resolution of any such proceeding which settlement or resolution obligates the other party to pay money, to perform obligations or to admit or accept a finding of liability, wrongdoing or violation of law or the rights of any Person without the consent of the other party, such consent not to be unreasonably withheld (taking into account the impact of the settlement on ongoing business). In the event the Indemnified Party shall refuse to consent to the settlement of any third Person claim, so long as only money damages that are payable in full by the Indemnitor are involved and expenses there is no admission of liability, wrongdoing or violation of law or the rights of any Person with respect to the Indemnified Party, the liability of the Indemnitor in respect of such third Person claim shall not exceed the amount for which the third Person claim could have been settled plus the amount of expenses incurred by the Indemnified Party's counsel Party prior to the extent that such Indemnified Party time of the proposed settlement to which it is entitled to indemnification. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been advised by counsel that there is a reasonable likelihood of conflict of interest between consummated, or the Indemnified Party and the Indemnitor; (c) Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or compromise bank cashier’s check within 30 days after the date of such third Person claimnotice.
(c) To the extent of any inconsistency between this Section 11.5 and Section 8.1(c) (relating to Tax contests), the provisions of Section 8.1(c) shall control with respect to Tax contests.
Appears in 1 contract
Samples: Purchase Agreement (Aon Corp)
Third Person Claims. The Indemnitor (a) Subject to SECTION 11.4(B), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and provided, further, that the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within 14 days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages or, where any Seller is the Indemnitor, will have no continuing effect in any material respect on the Business or the Purchased Assets, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
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Third Person Claims. The Indemnitor (a) Subject to Section 10.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that (i) the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and (ii) the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within fourteen (14) calendar days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages or, where Sellers is the Indemnitor, will have no continuing effect in any material respect on the Company or its business, assets or operations, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, provided that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
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Third Person Claims. The Indemnitor (a) Subject to Section 5.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that (i) the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and (ii) the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within fourteen (14) days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefore hereunder shall be waived.
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Third Person Claims. The In any third person claim, action or suit against any Indemnified Party, then the Indemnitor shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any such third person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunderhereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived. Notwithstanding the foregoing, Lessor shall be entitled to control the defense of any claim, action or suit which could result in the suspension or revocation of any FCC License.
Appears in 1 contract
Samples: Lease Agreement (Globalstar, Inc.)
Third Person Claims. The Indemnitor shall have (a) Promptly after an Indemnitee has received notice of or has knowledge of any claim by a person not a party to this Agreement (a "Third Person") or the right to conduct ------------------- and control, through counsel commencement of its choosingany action or proceeding by a Third Person, the defenseIndemnitee shall give the Seller Indemnifying Party or the Buyer Indemnifying Party, compromise as the case may be, written notice of such claim or settlement the commencement of any third person such action or proceeding. The failure to so notify the Indemnifying Party will relieve the Indemnifying Party from liability under this Section 9 with respect to such claim, suit or proceeding, but only if and to the extent that such failure adversely affects the ability of the Indemnifying Party to defend its interest in such claim, action or suit against proceedings.
(b) The Indemnitee shall permit the Indemnifying Party (at the expense of such Indemnifying Party) to assume control of the investigation and defense of any Indemnified claim by a Third Person or any litigation resulting therefrom, provided that (i) the counsel for the Indemnifying Party as who shall conduct the defense of such claim or litigation shall be reasonably satisfactory to which indemnification will be sought by the Indemnitee and (ii) the Indemnitee may participate in such Indemnified defense at such Indemnitee's expense.
(c) The Indemnifying Party from may make any Indemnitor hereunder, and in settlement with respect to any such case claim by a Third Person or any litigation resulting therefrom, without the Indemnified Party prior consent of the Indemnitee, provided that without the prior written consent of the Indemnitee, which consent shall cooperate in connection therewith and shall furnish such recordsnot be unreasonably withheld, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expenseno Indemnifying Party, in the defense of any such claimclaim or litigation, action shall consent to entry of any judgment or suit enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnitee or that does not include as to which an unconditional term thereof the Indemnitor has so elected to conduct and control giving by the defense thereof; (b) the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel claimant or plaintiff to the extent that Indemnitee release of all liability in respect such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claimlitigation.
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Third Person Claims. The (a) Subject to Section 11.6, any Indemnified Party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party (a “Third Person Claim”) shall notify the Indemnitor in writing, and in reasonable detail, of the Third Person Claim within fifteen (15) Business Days (or reasonably more promptly dependent upon the circumstances) after receipt by such Indemnified Party of written notice of such Third Person Claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within ten (10) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to such Third Person Claim. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall refer to the provision of this Agreement upon which such claim is based and describe in reasonable detail (to the extent known) the facts giving rise to an alleged basis for the claim and (to the extent known) the amount of the liability asserted against the Indemnitor by reason of such Third Person Claim; provided, however, that the failure or delay of the Indemnified Party to give notice to the Indemnitor as provided in this Section 11.4 shall not relieve the Indemnitor of its obligations hereunder except to the extent the Indemnitor shall have been prejudiced by such failure.
(b) In the right to conduct ------------------- and controlevent of the initiation of a Third Person Claim, through within thirty (30) days after the Indemnified Party’s delivery of written notice under this Section 11.4, the Indemnitor may be represented by counsel of its choosingchoice and assume control of the defense of such Third Person Claim by giving to the Indemnified Party written notice of the intention to assume such defense; provided, however, that the Indemnified Party may participate in any such Proceeding with counsel of its choice and at its expense; provided further, that the Indemnitor shall not be entitled to assume or continue control of the defense of any Third Person Claim if (i) the Third Person Claim relates to or arises in connection with any criminal Proceeding or (ii) the Third Person Claim primarily seeks an injunction or equitable relief against any Indemnified Party. The parties agree to cooperate fully and in good faith with each other in connection with the defense, compromise negotiation or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case Third Person Claim. To the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by extent the Indemnitor in connection therewith; provideddoes not, that (a) or is not able to, assume the defense of such Third Person Claim, the Indemnified Party may participateretain counsel at the expense of the Indemnitor, through which counsel chosen by it and at its own expenseshall be reasonably acceptable to the Indemnitor, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereofof such Proceeding; (b) provided, however, that the Indemnitor shall be obligated pursuant to this Section 11.4 to pay for only one firm of counsel for all Indemnified Parties. Neither the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between Indemnitor nor the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to may settle any third Person claim such Proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability, or which fails to fully and unconditionally release the other party from liability, without the consent of the Indemnified Party unless other party, such settlement consent not to be unreasonably withheld, conditioned or delayed.
(ic) releases To the Indemnified Party from all past extent of any inconsistency between this Section 11.4 and future liability concerning the subject matter of the action and Section 8.1(c) (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right relating to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderTax contests), the Indemnified Party provisions of Section 8.1(c) shall not settle or compromise such third Person claimcontrol with respect to Tax contests.
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Third Person Claims. The Indemnitor (a) Subject to subsection (b), the Indemnitee shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise compromise, or settlement of any third third-person claim, action action, or suit against any Indemnified Party such Indemnitee as to which indemnification will be sought by such Indemnified Party any Indemnitee from any Indemnitor hereunder, and in any such case the Indemnified Party Indemnitor shall cooperate in connection therewith and shall furnish such records, information information, and testimony and attend such conferences, discovery proceedings, hearings, trials trials, and appeals as may be reasonably requested by the Indemnitor Indemnitee in connection therewith; provided, that (a) the Indemnified Party . The Indemnitor may nevertheless participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action action, or suit as to which the Indemnitee has so elected to conduct and control the defense thereof. The Indemnitee shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise, or settle any such claim, action, or suit, except that no such consent shall be required if, following a written request from the Indemnitee, the Indemnitor shall fail, within fourteen (14) days after the making of such request, to acknowledge and agree in writing that, if such claim, action, or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnitee, nor shall any such consent be required if the Indemnitee waives any right to indemnity therefor.
(b) If any third-person claim, action, or suit against any Indemnitee is solely for money damages, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise, or settlement of any such third-person claim, action, or suit against such Indemnitee as to which indemnification will be sought by any Indemnitee from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnitee in respect thereof, and in any such case the Indemnitee shall cooperate in connection therewith and shall furnish such records, information, and testimony and attend such conferences, discovery proceedings, hearings, trials, and appeals as may be reasonably requested by the Indemnitor in connection therewith. The Indemnitee may nevertheless participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action, or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor foregoing, the Indemnitee shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle pay, settle, or compromise any third Person claim without such claim, action, or suit if the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no Indemnitee waives any right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claimindemnity therefor.
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Third Person Claims. In the event of any claim for ------------------- indemnification hereunder resulting from or in connection with any claim or legal proceeding by a third Person, the Indemnified Persons shall give such notice thereof to the Indemnitor not later than 20 business days prior to the time any response to the asserted claim is required, if possible, and in any event within 15 days following the date such Indemnified Person has actual knowledge thereof; provided, however, that the omission by such -------- ------- -42- Indemnified Person to give notice as provided herein shall not relieve the Indemnitor of its indemnification obligation under this Article X except to the --------- extent that such omission results in a failure of actual notice to the Indemnifying Person and such Indemnifying Person is materially damaged as a result of such failure to give notice. The Indemnitor Indemnified Person shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement defense of any third person Person claim, action or suit against any such Indemnified Party Person as to which indemnification will be sought by such any Indemnified Party Person from any Indemnitor hereunder, and in any such case the Indemnified Party Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor Indemnified Person in connection therewith; provided, that (a) the Indemnified Party Indemnitor may participate, through counsel chosen -------- by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor Indemnified Person has so elected to conduct and control the defense thereof; and provided, further, that the Indemnified Person shall not, -------- ------- without the written consent of the Indemnitor (b) which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Person, the Indemnitor shall pay for fail, within 14 days after the fees and expenses making of such Indemnified Party's counsel request, to the extent that respond to such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between Person. Notwithstanding the foregoing, the Indemnified Party and the Indemnitor; (c) the Indemnitor Person shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderpay, the Indemnified Party shall not settle or compromise any such third claim, action or suit without such consent, provided that in such event the Indemnified Person claimshall waive any right to -------- indemnity therefor hereunder.
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Third Person Claims. The Indemnitor shall have the right (a) In order for a Person to conduct ------------------- and controlbe entitled to any indemnification provided for under this Agreement in respect of, through counsel arising out of its choosing, the defense, compromise or settlement of involving a claim or demand made by any third person claimPerson against the Indemnified Party, action or suit against any such Indemnified Party as to which indemnification will be sought must notify the Indemnitor in writing, and in reasonable detail, of the third Person claim promptly after receipt by such Indemnified Party from any Indemnitor hereunderof written notice of the third Person claim. Thereafter, and in any such case the Indemnified Party shall cooperate in connection therewith deliver to the Indemnitor, within five (5) days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a Person be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint within five (5) days after receipt thereof and shall furnish deliver to the Indemnitor within five (5) days after the receipt of such records, information complaint copies of notices and testimony and attend documents (including court papers) received by the Indemnified Party relating to the third Person claim (or in each case such conferences, discovery proceedings, hearings, trials and appeals earlier time as may be reasonably requested by necessary to enable the Indemnitor in connection therewith; provided, that to respond to the court proceedings on a timely basis).
(ab) In the event of any claim or initiation of any legal proceeding against the Indemnified Party may participateby a third Person, through counsel chosen by it the Indemnified Party shall permit the Indemnitor to assume the defense of such claim or legal proceeding, at its option and at its own expense, if the Indemnitor notifies the Indemnified Party of its election to assume such defense within thirty (30) calendar days after it receives notice of such claim and the Indemnitor acknowledges without qualification (other than by reference to the limitations in this Article 10) its indemnification obligations provided in this Article 10 with respect to such third Person claim or legal proceeding in writing to the defense of Indemnified Party to control, defend against, negotiate and otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such claim, action or suit as to which proceeding with counsel of its choice and at its expense unless the named parties in such third Person claim include both the Indemnitor has so elected to conduct and control the defense thereof; (b) Indemnified Party and the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by legal counsel that there is a reasonable likelihood of conflict of interest between may be one or more legal defenses available to it which are different from or additional to those available to the Indemnitor (provided that in such situation, the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have be entitled to employ more than one law firm). The Party controlling the right to settle any defense of such third Person claim (the “Controlling Party”) shall keep the non-Controlling Party advised of the status of such third Person claim and the defense thereof and shall consider in good faith the recommendations made by the non-Controlling Party with respect thereto. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding. If the Indemnitor elects to assume control of the defense of a third Person claim, any fees and expenses of legal counsel employed by the Indemnified Party with respect to such third Person claim shall be considered Losses for which the Indemnified Party may be entitled to indemnification under this Article 10 only if the named parties in such third Person claim include both the Indemnitor and the Indemnified Party or the Indemnified Party has been advised by legal counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnitor (provided that in such situation, the Indemnified Party shall not be entitled to employ more than one law firm). Neither the Indemnitor nor the Indemnified Party may settle or compromise any such third Person claim or legal proceeding, which settlement or compromise obligates the other Party to pay money, to perform obligations or to admit liability without the written consent of the other Party, such consent not to be unreasonably withheld or delayed; provided that the consent of the Indemnified Party unless shall not be required if the Indemnitor agrees in writing to pay any amounts payable pursuant to such settlement (i) releases or compromise and such settlement or compromise includes a complete written release of the Indemnified Party from all past further liability and future liability concerning the subject matter of the action and (ii) has no effect does not impose any injunctive relief or other operational restrictions on the business or assets of the Indemnified Party; .
(c) The parties agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. Such cooperation shall include the retention and the provision of records and information which is reasonably relevant to such third Person claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(d) After any final Court Order shall have been rendered and the time therefrom in which to appeal has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall have no right arrive at a mutually binding agreement with respect to conduct or control any defense of a claim brought each separate matter alleged to be indemnifiable by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer within five (5) Business Days after the date of such notice.
(e) Sections 10.2 through 10.5 shall not settle or compromise such third Person claimapply to any Tax Claims, which shall instead be subject to the provisions of Section 7.2.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sm&A)
Third Person Claims. (a) The Indemnitor shall have the right right, exercisable by written notice to the Indemnified Party within twenty (20) days after receipt of a Claim Notice for a Third Person Claim, to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person claim, action or suit against any such Third Person Claim; provided that the Indemnitor acknowledges and agrees in writing that the Indemnitor has the obligation to indemnify the Indemnified Party as with respect to which indemnification will be sought by such Indemnified Party from any Indemnitor Third Person Claim hereunder, and in . In any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, provided that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of such Third Person Claim (including any such claim, action discussions and negotiations regarding settlement or suit as to which the Indemnitor has so elected to conduct compromise) and control the defense thereof; (b) provided further that the Indemnitor shall pay for not, without the fees and expenses prior written consent of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and (which written consent shall not be unreasonably withheld), compromise or settle such Third Person Claim. Notwithstanding the Indemnitor; (c) foregoing, the Indemnitor shall not have the right to settle or compromise any third such Third Person claim Claim without such consent, so long as the consent settlement (1) does not provide for injunctive or other nonmonetary relief affecting any Indemnified Party, (2) does not include any admission of fault, culpability or wrongdoing and (3) includes as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party unless of a complete and unconditional release from all liability with respect to such settlement Third Person Claim.
(b) Notwithstanding the foregoing, if either (i) releases the Indemnified Party from all past and future liability concerning Indemnitor does not so assume the subject matter defense of the action and a Third Person Claim, or (ii) such Third Person Claim either (A) seeks permanent injunctive relief, (B) where any Key Securityholder is the Indemnitor, seeks any other equitable remedies which, if granted, would reasonably be expected to have a Material Adverse Effect on the Surviving Corporation, (C) is a criminal proceeding or (D) involves or arises out of any inquiry, investigation or proceeding by any Governmental Body, including any civil investigative demand or an investigation or inquiry (including proceedings, inquiries, actions or investigations by any Governmental Body, so-called “whistleblower” or qui tam complaints, even if the government has no declined to intervene in such “whistleblower” or qui tam complaints) (provided that in the case of any Third Person Claim described in this clause (D), if such Third Person Claim is adversely determined, such Third Person Claim would have a material adverse effect on the business or assets reputation of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct Surviving Corporation or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderParent), then the Indemnified Party shall not settle have the right to conduct and control, through counsel of its choosing, the defense, compromise or compromise settlement of such third Third Person claimClaim. In any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided that the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of such Third Person Claim (including any discussions and negotiations regarding settlement or compromise).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Navigant Consulting Inc)
Third Person Claims. The Indemnitor (a) Subject to Section 11.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and provided, further, that the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages or, where Smitx & Xephew is the Indemnitor, will have no continuing effect in any material respects on the Company or S&N DonJoy Mexico, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the . The Indemnitor shall not have the right to pay, settle or compromise any third Person such claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent obtaining an unconditional general release of the Indemnified Party. So long as Notwithstanding the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder.
(c) If there shall be any conflicts between the provisions of this Section 11.4 and Section 8.1(c) (relating to Tax contests), the provision of Section 8.1(c) shall control with respect to Tax contests.
Appears in 1 contract
Third Person Claims. The Indemnitor 10.3.1 Subject to Section 10.3.2 and Section 12.15 hereof, the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, at the Indemnified Party’s sole cost, the defense, compromise or settlement of any third person claim, action or suit Third Person Claim against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that:
(a) the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such Third Person Claim as to which the Indemnified Party has so elected to conduct and control the defense thereof; and
(b) the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld, conditioned or delayed), pay, compromise or settle any such Third Person Claim; provided that if the Indemnitor withholds such consent, or fails to grant such consent within fourteen (14) days after written request from the Indemnified Party, and such Third Person Claim shall be adversely determined, then the Indemnitor shall have an obligation to provide indemnification hereunder to the Indemnified Party, but such indemnification shall exclude the amount, if any, by which the 12 Purchase and Sale Agreement (RelaDyne Portfolio) proposed settlement amount exceeds the Liability Limitation; provided, that, in no event shall such exclusion reduce the indemnification provided hereunder below the Liability Limitation. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such Third Person Claim without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld, conditioned or delayed.
10.3.2 Notwithstanding the foregoing or anything to the contrary herein, if any Third Person Claim against any Indemnified Party is solely for money damages not in excess of the Liability Limitation and such Third Person Claim will have no continuing effect in any material respect on any Property, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, at its sole cost and expense, the defense, compromise or settlement of any such Third Person Claim against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith, such cooperation to be at no cost or expense to the Indemnified Party; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit Third Person Claim as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Third Person claimClaim, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, conditioned or delayed, in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Fortress Net Lease REIT)
Third Person Claims. The Indemnitor (a) (i) Subject to Section 10.3(b), the Search Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person claim, action or suit (a "Third Person Claim") against any such Search Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Indemnifying Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor Search Indemnified Party in connection therewith; provided, that (a) the Indemnified Indemnifying Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit Third Person Claim as to which the Indemnitor Search Indemnified Party has so elected to conduct and control the defense thereof; (b) and provided, further, that the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Search Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim not, without the written consent of the Indemnified Indemnifying Party unless (which consent shall not be unreasonably withheld), pay, compromise or settle any such settlement (i) releases Third Person Claim, except that no such consent shall be required if, following a written request from the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Search Indemnified Party; , the Indemnifying Party shall fail, within fifteen (15) days after the making of such request, to acknowledge and (d) the Indemnitor agree in writing that, if such Third Person Claim shall have no right be adversely determined, such Indemnifying Party has an obligation to conduct or control any defense of a claim brought by a Governmental Body without the consent of the provide indemnification hereunder to such Search Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claim.
Appears in 1 contract
Third Person Claims. The Indemnitor (a) Subject to Section 10.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that (i) the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and (ii) the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within 14 days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages or, where Seller is the Indemnitor, will have no continuing effect in any material respect on the Company or its business, assets or operations, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, provided that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
(c) If there shall be any conflict between the provisions of this Section 10.4 and 9.1(c) (relating to Tax contests), the provisions of Section 9.1(c) shall control with respect to Tax contests.
Appears in 1 contract
Samples: Stock Purchase Agreement (Coventry Health Care Inc)
Third Person Claims. The Indemnitor (a) Subject to Section 8.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosingreasonably satisfactory to the Indemnitor, the defense, compromise or settlement of any third person claim, action or suit Third Person Claim against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall reasonably cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that:
(i) the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such Third Person Claim as to which the Indemnified Party has so elected to conduct and control the defense thereof; and
(ii) the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld, conditioned or delayed), pay, compromise or settle any such Third Person Claim, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within 15 days after the making of such request, to acknowledge and agree in writing that, if such Third Person Claim shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to suchIndemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such Third Person Claim without such consent, provided, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any Third Person Claim against any Indemnified Party is solely for money damages which will be fully borne by the Indemnitor or, where the Selling Parties are the Indemnitor, will have no continuing effect on the Business or the Company, then the Indemnitor shall have the right to conduct and control, through counsel reasonably satisfactory to the Indemnified Party, the defense, compromise or settlement of any such Third Person Claim against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if (i) the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide full indemnification to the Indemnified Party in respect thereof and (ii) the final settlement or compromise includes a full and unconditional release and discharge in favor of Buyer, the Company and the Business, and in any such case the Indemnified Party shall reasonably cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit Third Person Claim as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claim.
Appears in 1 contract
Third Person Claims. The Indemnitor shall have (a) If the right Claiming Party seeks indemnification under this Article X with respect to any pending or threatened action at law or suit in equity by a third Person against such Claiming Party (each such action being a “Third Person Claim”), the Indemnifying Party will be entitled, if (i) the Third Person Claim involves solely monetary damages and the Indemnifying Party expressly agrees in writing with the Claiming Party that, as between the two, the Indemnifying Party is solely responsible to satisfy and discharge the Third Person Claim and (ii) the Indemnifying Party so elects by written notice delivered to the Claiming Party no later than thirty (30) days after receiving the Claim Notice, to conduct ------------------- and controlcontrol the defense of such Third Person Claim with counsel chosen by it and approved by the Claiming Party (which approval shall not be unreasonably withheld, through counsel of its choosing, the defense, compromise conditioned or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunderdelayed), and in any such case the Indemnified Claiming Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor Indemnifying Party in connection therewith; provided, that (a) the Indemnified Claiming Party may participateparticipate in, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit Third Person Claim as to which the Indemnitor Indemnifying Party has so elected to conduct and control the defense thereof, except that the Claiming Party shall not be provided the opportunity to so participate to the extent the Indemnifying Party reasonably determines that such participation could result in the loss of any attorney-client privilege or right under the work-product doctrine in respect of such Third Person Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to conduct or control the defense of a Third Person Claim (or shall surrender the control of a Third Person Claim) if (v) the Indemnifying Party has not elected to assume the defense of such Third Person Claim in accordance with, or has otherwise breached, this Section 10.6(a); (bw) the Indemnitor shall pay Claiming Party seeks recovery under the R&W Policy in connection with such Third Person Claim (which for the fees avoidance of doubt, Holdings and/or the insurer under the R&W Policy shall have the right to control (whether directly or indirectly)); (x) the Third Person Claim involves criminal actions or allegations of criminal conduct, or claims for or reasonably expected to result in claims for specific performance, injunction or other equitable or non-monetary relief; (y) a defense available to the Claiming Party cannot be asserted by the Indemnifying Party; or (z) representation of the Indemnifying Party and expenses the Claiming Party by the same counsel would, in the reasonable opinion of the Claiming Party’s counsel, create a conflict of interest. After the expiration of the thirty (30)-day period contained in the first sentence of this Section 10.6(a), unless the Indemnifying Party has assumed the defense of a Third Person Claim in accordance with this Section 10.6(a), the Claiming Party shall have the right to undertake the defense of such Indemnified Party's Third Person Claim on behalf of and for the account and risk of the Indemnifying Party subject to the right of the Indemnifying Party to assume the defense of such Third Person Claim pursuant to this Section 10.6(a); provided, that, if pursuant to the terms set forth in this Article X the Indemnifying Party is responsible to satisfy and discharge any Third Person Claim in whole or in part, the Indemnifying Party may participate in, through counsel chosen by it and at its own expense, the defense of any such Third Person Claim as to which the Claiming Party conducts and controls the defense to the extent that such Indemnified participation does not interfere with the defense of such Third Person Claim or could not reasonably be expected to adversely affect the attorney-client, work-product or similar privilege of the Claiming Party. If the Claiming Party has been advised is defending the Third Person Claim, the Indemnifying Party shall reimburse the Claiming Party for reasonable attorneys’ fees and disbursements incurred by counsel that there the Claiming Party in connection with defending any Third Person Claim to the extent the Indemnifying Party is a reasonable likelihood responsible to satisfy and discharge such Third Person Claim pursuant to the terms set forth in this Article X.
(b) Notwithstanding anything to the contrary herein, neither the Indemnifying Party nor the Claiming Party shall admit any liability with respect to, or settle, compromise, discharge or consent to the entry of conflict judgment with respect to, any Third Person Claim without the prior written consent of interest between the Indemnified Claiming Party or the Indemnifying Party, respectively (which consent shall not be unreasonably withheld, conditioned or delayed). For the avoidance of doubt, the prior written consent of the Indemnifying Party shall not be required if the Indemnifying Party would not be responsible to satisfy and discharge the Indemnitor; Losses resulting from such Third Person Claim.
(c) Notwithstanding anything to the Indemnitor contrary in this Section 10.6, with respect to any Third Person Claim related to Tax, to the extent the procedures in this Section 10.6 are inconsistent with Section 6.4, Section 6.4 shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claimcontrol.
Appears in 1 contract
Samples: Equity Purchase and Contribution Agreement (Select Medical Corp)
Third Person Claims. The (a) As to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party, such Indemnified Party will notify the Indemnitor in writing, and in reasonable detail, of the third Person claim within ten (10) days after receipt by such Indemnified Party of written notice of the third Person claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within five (5) business days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within five (5) business days after receipt thereof and shall deliver to the Indemnitor within seven (7) business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. If such notice is not given within such (5) business day period, the Indemnitor shall still be required to provide indemnity and defense unless the Indemnitor has in fact been prejudiced in its defense by such tardy notice.
(b) In the event any legal proceeding shall be threatened or instituted or any claim or demand shall be asserted by any Person in respect of which payment may be sought by one party hereto from another party under the provisions of this Article XI, the Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, the facts giving rise to an alleged basis for the claim and the amount of the liability asserted against the Indemnitor by reason of the claim. In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the right to conduct ------------------- and controlafter the receipt of notice, through counsel of at its choosing, the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it option and at its own expense, to be represented by counsel satisfactory to the Indemnified Party and to participate in any proceeding, claim or demand which relates to any loss, liability or damage indemnified against hereunder, provided, however, that the defense Indemnified Party shall retain control of the proceeding. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such claimlegal proceeding, action claim or suit as to which demand. To the extent the Indemnitor has so elected elects not to conduct defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense thereof; (b) of such proceeding. Neither the Indemnitor shall pay for nor the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been advised by counsel that there is a reasonable likelihood of conflict of interest between consummated, or the Indemnified Party and the Indemnitor; (c) Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or compromise bank cashier’s check within 30 days after the date of such third Person claimnotice.
Appears in 1 contract
Samples: Purchase Agreement (Photomedex Inc)
Third Person Claims. The In the case of any third party Action as to which indemnification is sought by an Indemnitee, the Indemnitor shall have fifteen (15) days after receipt of a Claim Notice to notify the Indemnitee that it elects to conduct and control such Action. If the Indemnitor elects to conduct and control such Action, the Indemnitor shall agree promptly to reimburse the Indemnitee for the full amount of any Losses resulting from such Action, except fees and expenses of counsel for the Indemnitee incurred after the assumption of the conduct and control of such Action by the Indemnitor. If the Indemnitor does not give the foregoing notice, the Indemnitee shall have the right to conduct ------------------- and controlcontrol such Action (without prejudice to the Indemnitee’s right to seek indemnification pursuant to this Article VIII), through counsel of its choosing, the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, Indemnitee shall permit the Indemnitor to participate in the conduct of such Action through separate counsel chosen by it and at its own expensethe Indemnitor, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) the Indemnitor shall pay for but the fees and expenses of such Indemnified Party's counsel shall be borne by the Indemnitor. If the Indemnitor gives the foregoing notice, subject to the extent that first and second sentences of this Section 8.5, the Indemnitor shall have the right, at the sole expense of the Indemnitor, to conduct and control, such Indemnified Party has been advised by Action with counsel that there is a reasonable likelihood of conflict of interest between reasonably acceptable to the Indemnified Party Indemnitee, and the Indemnitor; Indemnitee shall cooperate with the Indemnitor in connection therewith, provided, that (cx) the Indemnitor shall permit the Indemnitee to participate in such conduct or settlement through counsel chosen by the Indemnitee, but the fees and expenses of such counsel shall be borne by the Indemnitee, and (y) the Indemnitor may not have the right to compromise or settle any third Person claim such Action without the consent of the Indemnified Party Indemnitee (which consent will not be unreasonably withheld, conditioned or delayed) unless such settlement (i) releases there is no finding or admission of any violation of Law by the Indemnified Party from all past and future liability concerning Indemnitee or any violation by the subject matter Indemnitee of the action rights of any Person and no effect on any other claims that may be made against the Indemnitee, (ii) has the sole relief provided is money Losses that are paid in full by the Indemnitor, (iii) the Indemnitee shall have no liability with respect to any compromise or settlement and (iv) such settlement includes an unconditional release in favor of the Indemnitee by the third-party claimant from all liability with respect to such claim. In the case of any third party Action as to which indemnification is sought by the Indemnitee which involves a claim for Losses other than solely for money Losses which could have a continuing effect on the business or assets of the Indemnified Party; Indemnitee or any of its Affiliates, the Indemnitee and (d) the Indemnitor shall have no right to jointly control the conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Partysuch Action. So long as the Indemnitor is defending The Parties hereto shall act in good faith in responding to, defending against, settling or otherwise dealing with such claims, notwithstanding any third Person claim dispute as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claimliability under this Article VIII.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Retrophin, Inc.)
Third Person Claims. The Indemnitor (a) Subject to Section 10.7(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor Indemnified Party in connection therewith; provided, that (a) the Indemnified Party Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor Indemnified Party has so elected to conduct and control the defense thereof; and provided, further, that the Indemnified Party shall not, without the written consent of the Indemnitor (b) which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall pay for fail, within fourteen (14) days after the fees making of such request, to acknowledge and expenses of agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party's counsel to . Notwithstanding the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages (and, where a Seller or the Shareholder is the Indemnitor, such claim, action or suit will have no continuing effect in any material respect on the Licenses), then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim., action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate
Appears in 1 contract
Samples: Agreement for Purchase and Sale of Licenses (Leap Wireless International Inc)
Third Person Claims. The (a) In order for a Party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party, such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the third Person claim within ten days after receipt by such Indemnified Party of written notice of the third Person claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within five days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a Party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint within five days after receipt thereof and shall deliver to the Indemnitor within seven days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim (or in each case such earlier time as may be necessary to enable the Indemnitor to respond to the court proceedings on a timely basis).
(b) In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right to conduct ------------------- and controlafter the receipt of notice, through counsel of at its choosing, the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The Parties agree to cooperate fully with each other in connection with the defense defense, negotiation or settlement of any such claimlegal proceeding, action claim or suit as to which demand. To the extent the Indemnitor has so elected elects not to conduct defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense thereof; (b) of such proceeding. Neither the Indemnitor shall pay for nor the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party may settle any such proceeding, which settlement obligates the other Party to pay money, to perform obligations or to admit liability without the consent of the other Party, such consent not to be unreasonably withheld. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been advised by counsel that there is a reasonable likelihood of conflict of interest between consummated, or the Indemnified Party and the Indemnitor; (c) Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnifiable by the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise forward to the Indemnitor notice of any sums due and owing by it with respect to such third Person claimmatter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer within thirty (30) days after the date of such notice.
Appears in 1 contract
Third Person Claims. The Indemnitor (a) Subject to Section 11.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and provided, further, that the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages or, where Parent is the Indemnitor, will have no continuing effect in any material respect on the Business or the Purchased Assets, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Third Person Claims. In the event that any claim for which a Party providing indemnification (the "Indemnifying Party") would be liable to a Party or any of its officers, directors, employees, agents or representatives entitled to indemnification hereunder (the "Indemnified Party") is asserted against or sought to be collected by a Third Person, the Indemnified Party shall promptly notify the Indemnifying Party of such claim, specifying the nature of such claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (the "Claim Notice"). The Indemnitor Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party:
(i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and
(ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claim; provided, however, that the Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires to defend against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to conduct ------------------- and defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, through counsel of any such defense or settlement, it may do so at its choosing, own cost and expense. If the defense, compromise or settlement of any third person Indemnifying Party disputes its liability with respect to such claim, action or suit elects not to defend against any Indemnified Party such claim, whether by not giving timely notice as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunderprovided above or otherwise, and in any such case the Indemnified Party shall cooperate in connection therewith have the right but not the obligation to defend against such claim, and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense amount of any such claim, action or suit if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which the Indemnitor has so elected such defense is unsuccessful, shall be conclusively deemed to conduct and control the defense thereof; (b) the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is be a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent liability of the Indemnified Indemnifying Party unless such settlement hereunder (i) releases subject, if it has timely disputed liability, to a determination in accordance with Section 8.4 that the Indemnified Party from all past and future disputed liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought is covered by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claimthis Article 8.)
Appears in 1 contract
Samples: Purchase and Sale Agreement (Markwest Hydrocarbon Inc)
Third Person Claims. The Indemnitor (a) Subject to Section 11.6(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Third Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, however, that the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and provided, further, that the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld, conditioned or delayed), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within 10 days after the making of such request, to acknowledge and agree or contest in writing that such 57 Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided, however, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld. The Indemnitor shall reimburse the Indemnified Party for all Losses and Expenses (including, without limitation, reasonable attorney's fees) on a periodic basis upon presentation of evidence of such Losses and Expenses.
(b) If any Third Person claim, action or suit against any Indemnified Party is solely for money damages and will have no continuing effect in any material respect on the Indemnified Party, the Business or the Assets, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such Third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, however, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit suit, as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided, further, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, conditioned or delayed in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Samples: Merger Agreement (Technitrol Inc)
Third Person Claims. (a) Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party shall notify the Indemnitor in writing, and in reasonable detail, of the third Person claim within ten (10) Business Days after receipt by such Indemnified Party of written notice of the third Person claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, as promptly as reasonably practicable after the Indemnified Party’s receipt thereof, copies of all notices, complaints and documents (including court papers) received by the Indemnitor relating to the third Person claim. The failure to give notice as provided in this Section 11.6 shall not relieve the Indemnitor of its obligations hereunder except to the extent the defense of such action shall have been materially prejudiced by such failure.
(b) If any legal proceeding shall be threatened or instituted or any claim or demand shall be asserted by any Person in respect of which payment may be sought by one party hereto from the other party under the provisions of this Article XI, the Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall refer to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based and describe in reasonable detail, the facts giving rise to an alleged basis for the claim and the amount of the liability (if then known) asserted against the Indemnitor by reason of the claim. In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to conduct ------------------- and control, through be represented by counsel of its choosingchoice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. Each of the parties hereto agrees to cooperate fully with the other party in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand and to make available to the other party all witnesses, pertinent records, materials and information in such party’s possession or under such party’s control relating thereto as is reasonably required by the other party. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding; provided, however, that the Indemnitor shall be obligated pursuant to this Section 11.6 to pay for only one firm of counsel in each applicable jurisdiction for all Indemnified Parties. If the Indemnitor does not, within twenty (20) days of receipt of notice of a proceeding, claim or demand, give notice to the Indemnified Party of its election to assume the defense of such proceeding, claim or demand and thereafter promptly assume the defense of such proceeding, claim or demand, then the Indemnified Party will (upon delivering written notice to such effect to the Indemnitor) have the right to undertake the defense, compromise or settlement of any third person claimsuch proceeding, action claim or suit against any Indemnified Party as demand and the Indemnitor shall have the right to which indemnification participate therein at its own cost and the Indemnitor will be sought bound by any judicial determination made with respect to such Indemnified Party from claim or any Indemnitor hereunder, and in any such case compromise or settlement of the claim effected by the Indemnified Party shall cooperate in connection therewith and shall furnish such recordsParty. Notwithstanding the foregoing, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by neither the Indemnitor in connection therewith; provided, that (a) nor the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of settle any such claimproceeding, action claim or suit as demand which settlement obligates the other party to which the Indemnitor has so elected pay money, to conduct and control the defense thereof; (b) the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel perform obligations or to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim admit liability without the consent of the Indemnified Party other party, such consent not to be unreasonably withheld, unless such settlement (i) releases does not involve any finding or admission of any violation of applicable Requirements of Law or any violation of the rights of any Person, (ii) does not involve any relief other than monetary damages and (iii) includes, as an unconditional term thereof, the giving by the claimant or the plaintiff of a full and unconditional release of the Indemnified Parties from all liability with respect to the matters that are subject to such proceeding. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right arrive at a mutually binding agreement with respect to conduct or control any defense of a claim brought each separate matter alleged to be indemnified by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or compromise bank cashier’s check within five (5) Business Days after the date of such third Person claimnotice.
(c) To the extent of any inconsistency between this Section 11.6 and Section 8.1(c) (relating to Tax contests), the provisions of Section 8.1(c) shall control with respect to Tax contests.
Appears in 1 contract
Samples: Stock Purchase Agreement (Catalyst Health Solutions, Inc.)
Third Person Claims. The (a) Any party seeking indemnification provided under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party, other than an Indemnifiable Proceeding (a “Third Person Claim”), shall notify the Indemnitor in writing, and in reasonable detail, of the Third Person Claim within ten (10) Business Days (or reasonably more promptly dependent upon the circumstances) after receipt by such Indemnified Party of written notice of the Third Person Claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within ten (10) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Person Claim. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall refer to the provision of this Agreement upon which such claim is based and describe in reasonable detail (to the extent known) the facts giving rise to an alleged basis for the claim and the amount of the liability asserted against the Indemnitor by reason of the Third Person Claim; provided, however, that the failure or delay of the Indemnified Party to give notice to the Indemnitor as provided in this Section 11.4 shall not relieve the Indemnitor of its obligations hereunder except to the extent the Indemnitor shall have been materially prejudiced by such failure.
(b) In the event of the initiation of a Third Person Claim, the Indemnitor shall have the sole and absolute right to conduct ------------------- and controlafter the receipt of notice, through counsel of at its choosing, the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it option and at its own expense, to retain counsel, which counsel shall be reasonably acceptable to the Indemnified Party, and to control, defend against, negotiate, settle or otherwise deal with any Proceeding which relates to any Losses and Expenses indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such Proceeding with counsel of its choice and at its expense; provided further, however, that the Indemnitor shall not be entitled to assume or continue control of the defense of any Third Person Claim if (i) the Third Person Claim is a criminal Proceeding, (ii) the Third Person Claim seeks, as its primary purpose, an injunction or equitable relief against any Indemnified Party, (iii) the potential Losses and Expenses that the Indemnified Party may suffer as a result of the Third Party Claim is subject to, and (in combination with all other such claim, action or suit as Losses and Expenses with respect to which indemnification is sought) is likely to exceed the Cap, or (iv) the Third Person Claim is asserted by a customer of any Acquired Company (except if such customer is also a customer of Sellers or their Affiliates). By assuming control over the defense, negotiation and settlement of the Third Party Claim, Indemnitor shall be deemed to have confirmed its obligation to indemnify the Indemnified Party with respect to any Losses and Expenses arising therefrom as relating thereto. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any Third Person Claim at the Indemnitor’s expense. To the extent the Indemnitor has so elected elects not to conduct defend such Third Person Claim, or is not entitled to defend such Third Person Claim pursuant to this Section 11.4(b), and the Indemnified Party defends against or otherwise deals therewith, the Indemnified Party may retain counsel at the expense of the Indemnitor, which counsel shall be reasonably acceptable to the Indemnitor, and control the defense thereofof such Proceeding; (b) provided, however, that the Indemnitor shall be obligated pursuant to this Section 11.4 to pay for only one firm of counsel, per applicable jurisdiction, for all Indemnified Parties.
(c) Neither the fees and expenses Indemnitor nor the Indemnified Party may settle any such Proceeding which settlement obligates the other party to pay money, to perform obligations (including to refrain from taking any actions) or to admit liability without the prior written consent of the other party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnified Party's counsel Party shall refuse to consent to the extent that such Indemnified Party has been advised by counsel that settlement of any Third Person Claim, so long as (i) only money damages are involved (ii), there is a reasonable likelihood no admission of conflict of interest between liability or wrongdoing with respect to the Indemnified Party and the Indemnitor; (ciii) the Indemnitor agrees that it has indemnification responsibility to all amounts of such money damages under this Article XI, the liability of the Indemnitor in respect of such Third Person Claim shall not exceed the amount for which the Third Person Claim could have been settled plus the right to settle any third Person claim without the consent amount of expenses incurred by the Indemnified Party unless such prior to the time of and in connection with the proposed settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and to which it is entitled to indemnification.
(d) To the Indemnitor shall have no right extent of any inconsistency between this Section 11.4 and Section 8.1(d) (relating to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderTax contests), the Indemnified Party provisions of Section 8.1(d) shall not settle or compromise such third Person claimcontrol with respect to Tax contests.
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Third Person Claims. The (a) Subject to Section 8.5(b), the Indemnitor shall have the right to conduct ------------------- and control, through counsel of its choosingchoosing (subject to the consent of the Indemnified Person, which consent shall not be unreasonably withheld), the defense, compromise or settlement of any third person claim, action or suit such Third Person Claim against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunderhereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit Third Person Claim as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel . Notwithstanding anything herein to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) contrary, the Indemnitor shall not have the right to settle or compromise any third Third Person claim Claim without the prior written consent of the Indemnified Party which shall not be unreasonably withheld, unless such the terms of any settlement or compromise provide for (i) releases no relief other than the payment of monetary damages for which the Indemnified Party from all past and future liability concerning the subject matter of the action will be indemnified in full and (ii) has no effect on the business or assets a full release of the Indemnified Party; and Party for all liability in respect of such claim or litigation.
(db) Notwithstanding the provisions of paragraph (a) above which grant to the Indemnitor the right to assume the defense of a Third Person Claim, if (i) the Indemnitor shall have no right elects not to conduct assume the defense or control fails to assume the defense in a timely manner, (ii) the Indemnitor and any defense Indemnified Party are both parties to or subjects of such Third Person Claim and a claim brought by a Governmental Body without conflict of interests exists between the consent Indemnitor and such Indemnified Party which has the potential of materially and adversely affecting the interests of the Indemnified Party. So long as Party in the Indemnitor is defending defense of such Third Person Claim or (iii) the Indemnified Party reasonably determines in good faith any third Person claim as to which indemnification has been sought hereunder, that the Indemnified Party or its Affiliates could be adversely affected in any material respect in such Third Person Claim other than as a result of monetary damages, then the Indemnified Party may conduct its own defense and employ counsel reasonably satisfactory to the Indemnitor to represent or defend it against such Third Person Claim, in which case the Indemnitor will pay the reasonable Expenses of such counsel. If the Indemnified Party retains its own counsel, the Indemnitor shall not settle or compromise such third reasonably cooperate in providing information to and consulting with the Indemnified Party about the Third Person claimClaim.
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Third Person Claims. The Indemnitor (a) Subject to Section 11.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such the Indemnified Party from any the Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and provided, further, that the Indemnified Party shall not, without the written consent of the Indemnitor (which consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent was unreasonably withheld.
(b) If any third Person claim, action or suit against an Indemnified Party is solely for money damages or, where a Seller is the Indemnitor, will have no continuing effect in any material respect on the Purchased Assets, the Assumed Liabilities or either Buyer, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against the Indemnified Party as to which indemnification will be sought by the Indemnified Party from the Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof to the extent provided herein, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the such Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit; provided, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder.
Appears in 1 contract
Third Person Claims. (a) The Indemnitor shall have the right to conduct ------------------- and control, in good faith and at its expense, through counsel of its choosing, the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as Third-Person Claim by delivering written notice to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish within thirty (30) days after the Indemnitor’s receipt of the Claim Notice relating to such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewithThird-Person Claim; provided, however, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit Third-Person Claim as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) provided, further, that notwithstanding the foregoing, the Indemnitor shall pay for will bear the fees and reasonable expenses of one such Indemnified Party's separate counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between in each jurisdiction (and shall pay such expenses as incurred) if the defendants in, or targets of, any such Action include both the Indemnified Party and the Indemnitor, and the Indemnified Party shall have reasonably concluded that there are or are reasonably likely to be legal defenses available to it which are different from or additional to those available to the Indemnitor or that representation by the same counsel is or is reasonably likely to be a conflict of interest; (c) and provided, further, that the Indemnitor shall not have the right to settle any third Person claim not, without the written consent of the Indemnified Party (which written consent shall not be unreasonably withheld, conditioned or delayed) pay, compromise or settle any such Third-Person Claim unless such payment, settlement (i) releases or compromise is solely for monetary damages, by its terms obligates the Indemnitor to pay the full amount of the liability in connection with such Third-Person Claim and includes an unconditional release of the Indemnified Party from all past and future liability concerning arising out of such Third-Person Claim. Notwithstanding the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall have the right to pay, settle or compromise any such Third-Person Claim without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder. Notwithstanding anything contained herein to the contrary, the Indemnitor shall not be entitled to have sole control over (and if it so desires, the Indemnified Party shall have sole control over) the defense, settlement or compromise of (but the Indemnitor shall nevertheless be required to pay all Losses and Expenses incurred by the Indemnified Party in connection with such defense, settlement or compromise to the extent required pursuant to this Article IX): (i) any Third-Person Claim that seeks only an order, injunction or other equitable relief against any Indemnified Party or any of its Affiliates that does not involve the payment of money other than in a de minimis amount or (ii) any Third-Person Claim reasonably expected to have a material adverse financial impact on such Indemnified Party’s business relationship with such Third-Person or its Affiliates that is materially greater than the amount that would be reasonably expected to be indemnified by the Indemnitor if such Third-Person Claim were adversely determined against such Indemnified Party and Indemnitor.
(b) If the Indemnitor elects not to assume the defense, settlement or compromise of an asserted liability, fails to timely and properly notify the Indemnified Party of its election as herein provided or, at any time after assuming such defense, fails to diligently defend against such Third-Person Claim in good faith or fails to have sufficient financial resources to pay the full amount of such potential liability in connection with such Third-Person Claim (taking into account the balance of the Indemnity Escrow), the Indemnified Party may, at the Indemnitor’s expense, pay, defend, settle or compromise such third asserted liability (but the Indemnitor shall nevertheless be required to pay all Losses and Expenses incurred by the Indemnified Party in connection with such payment, defense, settlement or compromise to the extent required pursuant hereto, subject to the limitations on such Indemnitor’s indemnification obligations hereunder); provided, however, that no Indemnified Party will, without the prior written consent of the Indemnitor (not to be unreasonably withheld, conditioned or delayed) settle or compromise or consent to the entry of any judgment with respect to any Third-Person claimClaim; provided, further, that the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such Third-Person Claim as to which the Indemnitor is not conducting and controlling the defense thereof pursuant to this Section 9.4(b). In connection with any defense of a Third-Person Claim (whether by the Indemnitor or the Indemnified Party), each of OpCo and Buyer shall, and shall cause their respective Affiliates to, cooperate in good faith in the defense or prosecution thereof, including providing the Indemnitor and its representatives reasonable access during normal business hours, to all personnel who may have knowledge of the facts and circumstances, and to all their respective properties, books, Contracts, commitments and records, relating to any claim by an Indemnified Party and to retain and furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested by a party hereto in connection therewith.
(c) Notwithstanding the foregoing, the procedures with respect to the conduct and control of the defense, compromise or settlement of any Third-Person Claim for any and all matters relating to Taxes shall be governed exclusively by Section 6.1 and shall not be governed by the above provisions of this Section 9.4.
Appears in 1 contract
Samples: Equity Purchase Agreement (Health Care Reit Inc /De/)
Third Person Claims. The In any third person claim, action or suit against any Indemnified Party, then the Indemnitor shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any such third person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunderhereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Samples: GSM Operating Agreements (Dobson Communications Corp)
Third Person Claims. The Indemnitor (a) Subject to Section 10.3(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that (i) the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and (ii) the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within 14 days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages or will have no continuing effect in any material respect on the Company or any Subsidiary or its business, assets or operations, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, provided that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Samples: Stock Purchase Agreement (Global Med Technologies Inc)
Third Person Claims. If any claim for which a Party providing ------------------- indemnification (the "Indemnifying Party") would be liable to a Party or any of its officers, directors, employees, agents or representatives entitled to indemnification hereunder (the "Indemnified Party") is asserted against or sought to be collected by a Third Person, the Indemnified Party shall promptly notify the Indemnifying Party of such claim, specifying the nature of such claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (the "Claim Notice"). The Indemnitor Indemnifying Party shall have 30 days from its receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party.
(a) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim, and
(b) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claim; provided, however, that the Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests, If the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires to defend against such claim or demand, them, except as hereinafter provided, the Indemnifying Party shall have the right to conduct ------------------- and defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, through counsel of any such defense or settlement, it may do so at its choosing, own cost and expense. If the defense, compromise or settlement of any third person Indemnifying Party disputes its liability with respect to such claim, action or suit elects not to defend against any Indemnified Party such claim, whether by not giving timely notice as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunderprovided above or otherwise, and in any such case the Indemnified Party shall cooperate in connection therewith have the right but not the obligation to defend against such claim, and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense amount of any such claim, action or suit if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which the Indemnitor has so elected such defense is unsuccessful, shall be conclusively deemed to conduct and control the defense thereof; (b) the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is be a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent liability of the Indemnified Indemnifying Party unless such settlement hereunder (i) releases subject, if it has timely disputed liability, to a determination in accordance with this Agreement that the Indemnified Party from all past and future disputed liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought is covered by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claimthis Article).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Design Automation Systems Inc)
Third Person Claims. The Indemnitor (i) Subject to subsection (g)(ii), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Third 41 Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, however, that the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and provided, further, that the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld or conditioned), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within 14 days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided, however, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(ii) If any Third Person claim, action or suit against any Indemnified Party is solely for money damages or will have no continuing effect in any material respect on the Indemnitor, the Indemnified Party, the Business or the Assets, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such Third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, however, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit suit, as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwith- standing the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided, further, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Third Person Claims. The Indemnitor In the event any Person to be indemnified is entitled to indemnification hereunder based upon a claim asserted by a third Person, ARI shall be given prompt notice thereof in reasonable detail; provided, however, the failure to give prompt notice shall not relieve ARI of any liability hereunder, except to the extent ARI is prejudiced by such failure. ARI shall have the right (without prejudice to the right of any ARL Indemnified Person to participate at its expense through counsel of its own choosing) to defend such claim at its expense and through counsel of its own choosing that is reasonably acceptable to the ARL Indemnified Person if ARI gives notice of its intention to do so not later than twenty (20) days following its receipt of notice of such claim from the ARL Indemnified Person (or such shorter time period as is required so that the interests of the ARL Indemnified Person would not be materially prejudiced as a result of its failure to have received such notice from ARI); provided, however, that if the defendants in any action shall include both ARI and an ARL Indemnified Person and the ARL Indemnified Person shall have reasonably concluded that counsel selected by ARI has a conflict of interest because of the availability of different or additional defenses to the ARL Indemnified Person, the ARL Indemnified Person shall have the right to conduct ------------------- select separate counsel to participate in the defense of such action on its behalf, at the expense of ARI. ARI shall not have the power to bind the ARL Indemnified Person, without the ARL Indemnified Person’s prior written consent, which shall not be unreasonably withheld, with respect to any settlement pursuant to which anything is required other than the payment of money and controlthen only to the extent that ARI shall make full payment of such money. If ARI does not so choose to defend any such claim asserted by a third Person for which the ARL Indemnified Person would be entitled to indemnification hereunder, through counsel then the ARL Indemnified Person shall be entitled to recover from ARI, on a monthly basis, all of its choosing, the defense, compromise or settlement reasonable attorneys’ fees and other costs and expenses of litigation of any third person nature whatsoever incurred in the defense of such claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in . If ARI assumes the defense of any such claim, action ARI will hold the ARL Indemnified Person harmless from and against any and all damages arising out of any settlement approved by ARI or suit as to which any judgment in connection with such claim or litigation. Notwithstanding the Indemnitor has so elected to conduct and control assumption of the defense thereof; (b) of any claim by ARI pursuant to this paragraph, the Indemnitor ARL Indemnified Person shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle approve the terms of any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to (which indemnification has been sought hereunder, the Indemnified Party approval shall not settle be unreasonably withheld or compromise such third Person claimdelayed). Notwithstanding anything to the contrary contained herein, ARI will not be liable for any settlement of a claim effected without its prior written consent.
Appears in 1 contract
Samples: Railcar Servicing Agreement (American Railcar Industries, Inc./De)
Third Person Claims. The Indemnitor Promptly after an Indemnitee has received notice ------------------- of or has knowledge of any claim by a person not a party to this Agreement ("Third Person") or the commencement of any action or proceeding by a Third ------------- Person, the Indemnitee shall give the Stockholder Representatives written notice of such claim or the commencement of such action or proceeding; provided, -------- however, that the failure to give such notice will not effect the Indemnitees' ------- right to indemnification hereunder with respect to such claim, action or proceeding, except to the extent that the Stockholder Representatives have, or the Stockholders have, been actually and materially prejudiced as a result of such failure. If the Stockholder Representatives notify the Indemnitee within thirty (30) days from the receipt of the foregoing notice that they wish to defend against the claim by the Third Person, then the Stockholder Representatives shall have the right to conduct ------------------- assume and control, through control the defense of the claim by appropriate proceedings with counsel of its choosing, reasonably acceptable to Indemnitee. The Indemnitee may participate in the defense, compromise at its sole expense, of any such claim for which the Stockholder Representatives shall have assumed the defense pursuant to the preceding sentence, provided, however that counsel -------- ------- for the Stockholder Representatives shall act as lead counsel in all matters pertaining to the defense or settlement of any third person claimsuch claims, action suit or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, further, however, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in Indemnitee shall control the defense of any such claim, action -------- ------- ------- claim or suit as proceeding that in the reasonable judgment of the Indemnitee and the Stockholder Representatives could have a material and adverse effect on Indemnitee's business apart from the payment of money damages. The Indemnitee shall be entitled to which the Indemnitor has so elected to conduct and control the defense thereof; (b) the Indemnitor shall pay indemnification for the reasonable fees and expenses of its counsel for any period during which the Stockholder Representatives have not assumed the defense of any claim. Whether or not the Stockholder Representatives shall have assumed the defense of any claim, neither the Indemnitee nor the Stockholder Representatives shall make any settlement with respect to any such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim claim, suit or proceeding without the prior written consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past other, which consent shall not be unreasonably withheld or delayed. It is understood and future liability concerning the subject matter of the action and (ii) has no agreed that in situations where failure to settle a claim expeditiously would reasonably be expected to have an adverse effect on the business or assets of party wishing to settle, the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense failure of a claim brought by party controlling the defense to act upon a Governmental Body without the request for consent to such settlement within five business days of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as receipt of notice thereof shall be deemed to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise constitute consent to such third Person claimsettlement for purposes of this Section 8.1.
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Third Person Claims. (a) In the event indemnification provided for under this Agreement is sought in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party, the Indemnified Party shall provide the Indemnitor, in addition to the Claim Notice, copies of all written notices and documents (including any complaint and other court papers) relating to the third Person claim promptly after the Indemnified Party’s receipt thereof. The failure of an Indemnified Party to provide the Indemnifying Party copies of such notices and documents promptly after the Indemnified Party’s receipt thereof shall not affect the Indemnified Party’s rights under this Article IX except to the extent such failure is actually prejudicial to the rights and obligations of the Indemnitor. --
(b) In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right to conduct ------------------- and controlafter the receipt of notice, through counsel of at its choosing, the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense defense, negotiation or settlement of any such claimlegal proceeding, action claim or suit as to which demand. To the extent the Indemnitor has so elected elects not to conduct defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, reasonably acceptable to the Indemnitor, at the expense of the Indemnitor, and control the defense thereof; (b) of such proceeding. Neither the Indemnitor shall pay for nor the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been advised by counsel that there is a reasonable likelihood of conflict of interest between consummated, or the Indemnified Party and the Indemnitor; (c) Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or compromise bank cashier’s check within 30 days after the date of such third Person claimnotice.
(c) To the extent of any inconsistency between this Section 9.4 and Section 6.1(c), the provisions of ----------- -------------- Section 6.1(c) shall control. --------------
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Third Person Claims. (a) In order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party, including without limitation any enforcement action any federal, state or local government agency, such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the third Person claim promptly after receipt by such Indemnified Party of written notice of the third Person claim. Thereafter, the Indemnified Party shall promptly deliver to the Indemnitor copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint promptly after receipt thereof and shall deliver to the Indemnitor promptly after the receipt of such complaint copies of notices and documents (including court papers) physically served upon the Indemnified Party relating to the third Person claim. The failure of any Indemnified Party to give the Claim Notice promptly or to deliver copies of notices and documents as required by this Section 9.4 shall not affect such Indemnified Party’s rights under this Article 9 except to the extent such failure is actually prejudicial to the rights and obligations of the Indemnitor.
(b) In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, including without limitation any enforcement action any federal , state or local government agency, the Indemnitor shall have the sole and absolute right to conduct ------------------- and controlafter the receipt of notice, through counsel of at its choosing, the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that, the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense defense, negotiation or settlement of any such claimlegal proceeding, action claim or suit as to which demand. To the extent the Indemnitor has so elected elects not to conduct defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, reasonably acceptable to the Indemnitor, at the expense of the Indemnitor, and control the defense thereof; (b) of such proceeding. Neither the Indemnitor shall pay for nor the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been advised by counsel that there is a reasonable likelihood of conflict of interest between consummated, or the Indemnified Party and the Indemnitor; (c) Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or compromise bank cashier’s check within thirty (30) days after the date of such third Person claimnotice.
Appears in 1 contract
Samples: Asset Purchase Agreement (Fisher Communications Inc)
Third Person Claims. The Indemnitor (a) Subject to Section 8.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosingreasonably satisfactory to the Indemnitor, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and provided, further, that the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit with respect to itself and its Affiliates without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party (i) is solely for money damages (ii) is subject to indemnification pursuant to Section 8.2(v) or (iii) where Seller or any Shareholder is the Indemnitor, will have no material adverse continuing effect on the Business or the Purchased Assets, then the Indemnitor shall have the right to conduct and control, through counsel reasonably satisfactory to the Indemnified Party, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit with respect to itself and its Affiliates, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Samples: Asset Purchase Agreement (Navigant International Inc)
Third Person Claims. (a) Except as set forth in Section 7.2(d), Section 7.2(e) or Section 7.2(f), if a Third Person Claim is commenced, then the Owners have or the Parent has, the case may be (the “Defense Provider”), a right to provide a defense to the Parent and its Affiliates or the Owners, as the case may be (the “Defense Recipient”), concerning the Third Person Claim for which the Defense Recipient has delivered a claim notice to the Defense Provider in accordance with Section 7.3. The Indemnitor shall Defense Provider has the right to select counsel that will defend the Defense Recipient, subject to the Defense Recipient’s approval, not to be unreasonably withheld. The Defense Provider has the right to settle or compromise the Third Person Claim, subject to the Defense Recipient’s approval, not to be unreasonably withheld. The Defense Recipient must disclose to the Defense Provider all information concerning the Third Person Claim except privileged materials relevant to any actual or potential dispute with the Defense Provider concerning the Defense Provider’s liability to pay for Losses arising out of the Third Person Claim, and must timely inform and consult with the Defense Provider on all matters relating to the Third Person Claim. The Defense Recipient and the Defense Provider acknowledge and agree that any information disclosed by the Defense Recipient or by independent counsel to the Defense Recipient is not a waiver of the privilege as to any other Person. If the Defense Provider fails, after exercising its right to provide a defense, to diligently pursue the defense of the Defense Recipient, such as, by failing to select counsel, then the Defense Recipient will have the right to conduct ------------------- defend itself and control, through select counsel of its choosing, own choosing and to take actions in its best interests concerning the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunderThird Person Claim, and in any such case the Indemnified Party shall Defense Recipient will not be required to cooperate in connection therewith and shall furnish such records, with the Defense Provider concerning the exchange of information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested unless otherwise required by the Indemnitor in connection therewith; providedother provisions of this Agreement. The Defense Provider, that (a) and not the Indemnified Party may participateDefense Recipient, through counsel chosen by it and at its own expense, in the defense will solely be responsible for payment of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to provided by Defense Provider, and Defense Provider must pay that counsel’s fees and expenses when due, except that if the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between Defense Recipient unreasonably withholds approval from Defense Provider concerning the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the Defense Provider’s right to settle any third or compromise the Third Person claim without Claim, then after the consent unreasonable withholding of approval, the Defense Recipient will solely be responsible for payment of the Indemnified Party unless such settlement (i) releases fees and expenses of that counsel incurred after the Indemnified Party from all past unreasonable withholding of approval, and future liability concerning the subject matter Defense Recipient must pay when due that counsel’s fees and expenses incurred after the unreasonable withholding of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claimapproval.
Appears in 1 contract
Third Person Claims. The (a) Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party, other than an Indemnifiable Proceeding (a “Third Person Claim”), shall notify the Indemnitor in writing, and in reasonable detail, of the Third Person Claim within ten (10) Business Days (or reasonably more promptly dependent upon the circumstances) after receipt by such Indemnified Party of written notice of the Third Person Claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the Third Person Claim. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall refer to the provision of this Agreement upon which such claim is based and describe in reasonable detail (to the extent known) the facts giving rise to an alleged basis for the claim and the amount of the liability asserted against the Indemnitor by reason of the Third Person Claim; provided, however, that the failure or delay of the Indemnified Party to give notice to the Indemnitor as provided in this Section 11.4 shall not relieve the Indemnitor of its obligations hereunder except to the extent the Indemnitor shall have been prejudiced by such failure.
(b) In the event of the initiation of a Third Person Claim, the Indemnitor shall have the sole and absolute right to conduct ------------------- and controlafter the receipt of notice, through counsel of at its choosing, the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any Proceeding which relates to any Losses and Expenses indemnified against hereunder; provided, however, that the Indemnified Party may participate in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct Proceeding with counsel of its choice (and control the defense thereof; (b) the Indemnitor shall pay for the fees and expenses of one such Indemnified Party's firm of counsel to in connection with such Third Party Claim shall nonetheless be considered Expenses for the extent purposes of this Agreement); provided further, however, that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have be entitled to assume or continue control of the right defense of any Third Person Claim if (i) the Third Person Claim relates to settle or arises in connection with any third criminal Proceeding, (ii) the Third Person claim without Claim seeks an Order, injunction, equitable relief or other relief other than money damages against any Indemnified Party, (iii) the consent of Indemnitor refuses to or fails to provide notice to the Indemnified Party unless that it irrevocably and unconditionally assumes responsibility for the defense of the Third Party Claim under this Section 11.4, or (iv) the Indemnitor refuses to or fails to diligently defend the Third Party Claim after giving notice of its intent to assume the defense under this Section 11.4. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any Third Person Claim. To the extent the Indemnitor elects not to defend such settlement (i) releases Third Person Claim, or is not entitled to defend such Third Person Claim pursuant to this Section 11.4(b), and the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business defends against or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderotherwise deals therewith, the Indemnified Party may retain counsel at the expense of the Indemnitor, which counsel shall be reasonably acceptable to the Indemnitor, and control the defense of such Proceeding; provided, however, that the Indemnitor shall be obligated pursuant to this Section 11.4 to pay for only one firm of counsel for all Indemnified Parties. Neither the Indemnitor nor the Indemnified Party may settle any such Proceeding which settlement obligates the other party to pay money, to perform obligations (including to refrain from taking any actions) or to admit liability without the prior written consent of the other party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnified Party shall refuse to consent to the settlement of any Third Person Claim, so long as only money damages are involved and there is no admission of liability or wrongdoing with respect to the Indemnified Party, the liability of the Indemnitor in respect of such Third Person Claim shall not settle or compromise such third exceed the amount for which the Third Person claimClaim could have been settled plus the amount of expenses incurred by the Indemnified Party prior to the time of and in connection with the proposed settlement to which it is entitled to indemnification.
(c) To the extent of any inconsistency between this Section 11.4 and Section 8.1(c) (relating to Tax contests), the provisions of Section 8.1(c) shall control with respect to Tax contests.
Appears in 1 contract
Third Person Claims. In the event that any claim for which a Party providing indemnification (the "Indemnifying Party") would be liable to a Party or any of its officers, directors, employees, agents or representatives entitled to indemnification hereunder (the "Indemnified Party") is asserted against or sought to be collected by a third Person, the Indemnified Party shall promptly notify the Indemnifying Party of such claim, specifying the nature of such claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim)(the "Claim Notice"); provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. The Indemnitor Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claim; provided, however, that the Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem reasonably necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to conduct ------------------- and defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, through counsel of any such defense or settlement, it may do so at its choosing, own cost and expense. If the defense, compromise or settlement of any third person Indemnifying Party does not elect to defend against such claim, action whether by not giving timely notice as provided above or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunderotherwise, and in any such case the Indemnified Party shall cooperate in connection therewith have the right but not the obligation to defend against such claim, and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense amount of any such claim, action or suit if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which the Indemnitor has so elected such defense is unsuccessful, shall be conclusively deemed to conduct and control the defense thereof; (b) the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is be a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent liability of the Indemnified Indemnifying Party unless such settlement hereunder (i) releases subject, if it has timely disputed liability, to a determination that the Indemnified Party from all past and future disputed liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought is covered by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claimthis Part Six).
Appears in 1 contract
Third Person Claims. The In any third Person Action against the Indemnified Party as to which indemnification will be sought from the Indemnitor hereunder, the Indemnitor may elect, but shall have the right not be required, to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement defense of any such third person claimPerson Action only if the Indemnitor has, action or suit within fourteen (14) days after Indemnitor's receipt of the Claim Notice, agreed in writing to undertake such defense at its expense. If the Indemnitor so assumes the defense and subsequently determines in good faith that the Claim is not subject to indemnification hereunder, the Indemnitor may withdraw from the defense of the Indemnified Party, provided that the Indemnitor shall, at Indemnitor's expense, take all actions reasonably necessary (and shall instruct its counsel to take all actions reasonably necessary) to transition the defense of the matter to other counsel, and provided further, that the Indemnitor shall have no claim against any the Indemnified Party as for recovery of fees, costs and expenses incurred prior thereto. In any case in which the Indemnitor elects to which indemnification will be sought by such Indemnified Party from any Indemnitor exercise its option hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) the . The Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim not, without the written consent of the Indemnified Party unless which consent will not be unreasonably withheld or delayed, pay, compromise or settle any such settlement (i) releases third Person Action; provided, that the Indemnified Party from shall be obligated to provide its consent if such compromise or settlement includes a release for the Indemnified Party of all past and future liability concerning with respect to the subject matter of the action and (ii) has no effect on the business being compromised or assets settled, a reimbursement of the Indemnified Party; 's Losses and (d) Expenses incurred in connection with the Third Party Action, and a provision that denies any liability for the claim asserted in the Third Party Action. Notwithstanding anything to the contrary contained herein, the failure of the 48 Indemnitor to agree in writing as provided pursuant to the first sentence of this Section 11.4 shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of not affect the Indemnified Party. So long as the 's rights against such Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claim.
Appears in 1 contract
Samples: Merger Agreement (Cumulus Media Inc)
Third Person Claims. (a) Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a pending or threatened Third Person Claim shall notify the Indemnitor in writing, and in reasonable detail, of the Third Person Claim within 10 days after receipt by such Indemnified Party of written notice of the Third Person Claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within five Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the Third Person Claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a Third Person Claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within five Business Days after receipt thereof and shall deliver to the Indemnitor within seven Business Days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the Third Person Claim. The failure to give notice as provided in this Section 10.5(a) shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure.
(b) The Indemnitor shall have the right sole and absolute right, at its option and at its own expense, to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person claim, action or suit Third Person Claim against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any such Indemnitor hereunder, and in any such case the such Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that that:
(ai) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit Third Person Claim as to which the Indemnitor has so elected to conduct and control the defense thereof; thereof (b) the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent provided, further, that such Indemnified Party has been advised by counsel that if there is exists a reasonable likelihood of conflict of interest between (including the availability of one or more legal defenses to the Indemnified Party which are not available to the Indemnitor) that would make it inappropriate in the reasonable judgment of the Indemnified Party (upon and in conformity with advice of counsel) for the same counsel to represent both the Indemnified Party and the Indemnitor, then the Indemnified Party will be entitled to retain one counsel reasonably acceptable to the Indemnitor, at the expense of the Indemnitor, provided that the Indemnified Party and such counsel will contest such Third Party Claim in good faith); and
(cii) the Indemnitor shall not have the right to settle any third Person claim not, without the written consent of the Indemnified Party unless (which written consent shall not be unreasonably withheld), pay, compromise or settle any such Third Person Claim if such payment, compromise or settlement (i) releases would obligate the Indemnified Party from all past to pay money, to perform obligations or to admit liability.
(c) To the extent the Indemnitor elects not to defend any Third Person Claim, and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct Party defends against or control otherwise deals with any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third such Third Person claim as to which indemnification has been sought hereunderClaim, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding. The Indemnified Party may not pay, compromise or settle any Third Person Claim if it would obligate the Indemnitor to pay money, to perform obligations or to admit liability without the written consent of the Indemnitor (which written consent shall not settle or compromise such third Person claimbe unreasonably withheld).
Appears in 1 contract
Samples: Asset Purchase Agreement (Fountain Powerboat Industries Inc)
Third Person Claims. The Indemnitor (a) Subject to Section 9.4(b) hereof, the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person claim, action or suit Third Person Claim against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that:
(i) the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such Third Person Claim as to which the Indemnified Party has so elected to conduct and control the defense thereof; and
(ii) the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such Third Person Claim, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within 14 days after the making of such request, to acknowledge and agree in writing that, if such Third Person Claim shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party without regards to the Indemnity Cap. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such Third Person Claim without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any Third Person Claim against any Indemnified Party is solely for money damages not in excess of the Indemnity Cap, where Seller is the Indemnitor, and such Third Person Claim will have no continuing effect in any material respect on the assets or properties or Business of the Company or the Shares, then any Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such Third Person Claim against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit Third Person Claim as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Third Person claimClaim, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitors to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Third Person Claims. (a) If a third Person claim is made against an Indemnified Party, and the Indemnitor acknowledges in writing to the Indemnified Party that the Indemnitor shall be obligated under the terms of its indemnity hereunder in connection with such third Person claim, then the Indemnitor shall be entitled, if it so elects, at its own cost, risk and expense, to assume the defense thereof with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnified Party. The Indemnitor shall have thirty (30) calendar days from receipt of any such notice of a third Person claim to give notice to assume the defense thereof. Should the Indemnitor so elect to assume the defense of a third Person claim, the Indemnitor shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnitor assumes such defense, the Indemnified Party shall have the right to conduct ------------------- participate in the defense thereof and controlto employ counsel, through at its own expense (except to the extent provided in the immediately preceding sentence), separate from the counsel employed by the Indemnitor, it being understood that the Indemnitor shall control such defense. Any compromise or settlement of its choosinga third Person claim by the Indemnitor shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. If the Indemnitor fails to assume the defense of a third Person claim within thirty (30) calendar days after receipt of such notice, the Indemnified Party against which such third Person claim has been asserted shall (upon delivering notice to such effect to the Indemnitor) have the right to undertake, at the Indemnitor’s cost and expense, the defense, compromise or settlement of any such claim on behalf of and for the account and risk of the Indemnitor. In the event the Indemnified Party assumes the defense of the third person Person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by keep the Indemnitor in connection therewith; provided, that (a) reasonably informed of the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense progress of any such claimdefense, action compromise or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) the settlement. The Indemnitor shall pay be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnitor has not assumed the defense thereof. If the Indemnitor chooses to defend any third Person claim, all the parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnitor’s request) the provision to the Indemnitor of records and information that are reasonably relevant to such third Person claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnitor shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 11.4 and for any final judgment (subject to any right of appeal), and the Indemnitor agrees to indemnify and hold harmless an Indemnified Party from and against any Damages by reason of such settlement or judgment.
(b) The Indemnified Party shall notify the Indemnitor in writing as soon as practicable of its discovery of any matter that does not involve a third Person claim being asserted against or sought to be collected from the Indemnified Party's counsel , giving rise to the claim of indemnity pursuant hereto. The failure so to notify the Indemnitor shall not relieve the Indemnitor from liability on account of this indemnification, except only if and to the extent that the Indemnitor demonstrates actual damage caused by such failure. The Indemnitor shall have thirty (30) calendar days from receipt of any such notice to give notice of dispute of the claim to the Indemnified Party. The Indemnified Party has been advised shall reasonably cooperate and assist the Indemnitor in determining the validity of any claim for indemnity by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and in otherwise resolving such matters. Such assistance and cooperation shall include providing reasonable access to and copies of information, records and documents relating to such matters, furnishing employees to assist in the Indemnitor; (c) the Indemnitor shall not have the right investigation and resolution of such matters and providing business assistance with respect to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claimmatters.
Appears in 1 contract
Third Person Claims. (a) The Indemnitor Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosingchoosing that is acceptable to: (A) Xxx Royal so long as he is employed by Fjord, and thereafter another person mutually agreed upon by the Members and Fjord, and (B) the Indemnitor and the Indemnified Parties (whose consent shall not be unreasonably withheld), the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party involving a third Person as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor Indemnified Party in connection therewith; provided, that (ai) the Indemnified Party Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor Indemnified Party has so elected to conduct and control the defense thereof; (b) the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no effect on the business or assets of such consent shall be required if, following a written request from the Indemnified Party; and (d) , the Indemnitor shall have no right fail, within 14 days after the making of such request, to conduct acknowledge and agree in writing that, if such claim, action or control any defense of a claim brought by a Governmental Body without the consent of the suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. So long as Notwithstanding the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit without such consent, provided, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If there shall be any conflict between the provisions of this Section 11.3 and 10.3 (relating to Tax contests), the provisions of Section 10.3 shall control with respect to Tax contests.
Appears in 1 contract
Third Person Claims. The Indemnitor (a) Subject to Section 10.03(b), an Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person claim, action or suit Third Person Claim against any such Indemnified Party as to which indemnification will be sought by such Indemnified Party from any the Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that:
(i) the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such Third Person Claim as to which the Indemnified Party has so elected to conduct and control the defense thereof; and
(ii) the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld, conditioned or delayed), pay, compromise or settle any such Third Person Claim, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within fourteen (14) days after the making of such request, to acknowledge and agree in writing that, if such Third Person Claim shall be adversely determined, the Indemnitor has an obligation to provide indemnification to such Indemnified Party in accordance with, and to the extent provided in, this Article X. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such Third Person Claim without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld, conditioned or delayed. If the Indemnified Party does not elect to proceed with the defense of any such Third Person Claim, the Indemnitor may proceed with the defense of such Third Person Claim with counsel reasonably satisfactory to the Indemnified Party; provided, however, that the Indemnitor may not settle, adjust or compromise any such Third Person Claim without the prior written consent of the Indemnified Party (which consent may not be unreasonably withheld, conditioned or delayed).
(b) If any Third Person Claim against any Indemnified Party (i) is solely for money damages and does not seek non-monetary relief (and the potential liability of the Indemnitor exceeds the potential liability of the Indemnified Party thereunder, taking into account the Indemnitor’s obligations under this Article X), and (ii) (A) does not involve criminal Action, (B) was not brought by or involves a Governmental Authority and (C) would not in the reasonable judgment of the Indemnified Party, if adversely determined, be reasonably likely to result in material harm to the reputation, regulatory position or ongoing business of the Indemnified Party or its Affiliates, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense of any such Third Person Claim against such Indemnified Party as to which indemnification will be sought hereunder if the Indemnitor has acknowledged and agreed in writing that, if such Third Person Claim shall be adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in accordance with, and to the extent provided in, this Article X, in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expenseit, in the defense of any such claim, action or suit Third Person Claim as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) , the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised which participation shall be payable by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as Notwithstanding the Indemnitor is defending foregoing contained in good faith any third Person claim as to which indemnification has been sought hereunderthis Section 10.03(b), the Indemnified Party shall not have the right to pay, settle or compromise any such third Third Person claimClaim, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, conditioned or delayed, in which event no claim for indemnity therefor hereunder shall be waived. The Indemnitor may not settle, adjust or compromise any such Third Person Claim without the prior written consent of the applicable Indemnified Party (which consent may not be unreasonably withheld, conditioned or delayed). In the event (x) the Indemnitor elects not to, or is not permitted to, defend such Third Person Claim or (y) the named parties in any such action (including any impleaded parties) include both Indemnitor and the Indemnified Party (or their respective Affiliates) and the representation of both parties by the same counsel would be inappropriate due to legal conflicts of interests between them, and the Indemnified Party defends against such Third Person Claim, the Indemnified Party may retain counsel, at the Indemnitor’s expense, and control the defense of such Third Person Claim; provided, however, that the Indemnitor shall be obligated pursuant to this Section 10.03(b) to pay for only one firm of counsel and one local counsel per jurisdiction for all Indemnified Parties.
(c) Notwithstanding anything in Section 10.03(a), the Indemnified Party shall control the defense and settlement of any Third Person Claim for which any Indemnified Party is seeking recovery solely under the R&W Insurance Policy.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Altra Industrial Motion Corp.)
Third Person Claims. The (a) Subject to Section 10.4(b), the ------------------- --------------- Indemnified Party shall have the right to conduct and control, through counsel reasonably satisfactory to the Indemnitor, the defense, compromise or settlement of any third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder; provided that the Indemnified Party shall consult in good -------- faith with the Indemnitor with respect to material decisions and actions relating to the defense, compromise or settlement of any such claim. In any such case the Indemnitor shall use commercially reasonably efforts to cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided that the Indemnitor may participate, through -------- counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and provided, further, that the Indemnified Party -------- ------- shall not, without the written consent of the Indemnitor (which written consent -55- shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within 14 days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit, provided that in such -------- event the Indemnified Party shall waive any right to indemnity therefor hereunder.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages, then the Indemnitor shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any such third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunderhereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, provided that (a) the Indemnified Party may participate, -------- through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right -------- to indemnity therefor hereunder.
(c) If there shall be any conflict between the provisions of this Section 10.4 and 9.3 (relating to Tax contests), the provisions of Section 9.3 ------------ --- ----------- shall control with respect to Tax contests.
Appears in 1 contract
Samples: Merger Agreement (Aptargroup Inc)
Third Person Claims. The Indemnitor shall have the right to ------------------- conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person claim, action or suit Claim against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunderhereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case case, the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, however, that (a) the -------- ------- Indemnified Party may participateparticipate (but not control), through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which suit. If the Indemnitor has so elected to conduct and control assumed the defense thereof; (b) of the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between Claim, the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle or compromise any third Person claim such Claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor's prior written consent. The Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise any such third Person claimClaim without the Indemnified Party's prior written consent unless Indemnitor obtains a complete and unconditional release of the Indemnified Party in connection therewith; provided that if the Indemnified Party withholds its consent to any monetary settlement that is acceptable to the Indemnitor and is to be paid by Indemnitor, then (a) the Indemnitor's liability with respect to such Claim shall be limited to such monetary amount and (b) the Indemnified Party shall be responsible for any additional costs reasonably incurred by the Indemnitor in connection therewith. If the Indemnitor does not assume the defense of the Claim, the Indemnified Party may assume the defense at the Indemnitor's expense; provided, however, that the Indemnified Party shall ----------------- not, without the written consent of the Indemnitor (which consent shall not be unreasonably withheld), pay, compromise or settle any such Claim, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within seven (7) days after the making of such request, to acknowledge and agree in writing that, if such Claim shall be adversely determined, such Indemnitor has an obligation to provide full indemnification hereunder to such Indemnified Party.
Appears in 1 contract
Third Person Claims. The Indemnitor (a) Subject to Section 9.5(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that (i) the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and (ii) the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within 14 days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent was unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages or, where Seller is the Indemnitor, will have no continuing effect in any material respect on the Company or its business, assets or operations, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, provided that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Third Person Claims. In the event of any claim for indemnification hereunder resulting from or in connection with any claim or legal proceeding by an unaffiliated third Person, the Requesting Party shall give such notice thereof to the Indemnitor not later than fifteen (15) days following the date such Requesting Party has actual knowledge thereof; provided, however, that the omission by such Requesting Party to give notice as provided herein shall not relieve the Indemnitor of its indemnification obligation under this Article IX, except to the extent that such Indemnitor is materially prejudiced as a result of such failure to give notice. The Indemnitor shall have the right to conduct ------------------- and control, through counsel of its choosingchoosing (such counsel to be reasonably satisfactory to the Requesting Party), the defense, compromise or settlement of any third person Person claim, action or suit against any Indemnified the Requesting Party as to which indemnification will be is sought by such Indemnified any Requesting Party from any Indemnitor hereunderhereunder (unless the Indemnitor is also a party to such proceeding and the Requesting Party determines in good faith that joint representation would cause a material conflict), and in any such case the Indemnified Requesting Party shall cooperate reasonably in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Requesting Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; and provided, further, that the Indemnitor shall not, without the written consent of the Requesting Party (bwhich written consent shall not be unreasonably withheld), compromise or settle any such claim, action or suit, except for money damages. If the Indemnitor assumes the defense of a proceeding (i) no compromise or settlement of such claim or proceeding may be effected by the Indemnitor without the Requesting Party’s consent, which consent will not be unreasonably withheld or delayed; and (ii) the Indemnitor shall pay for the fees and expenses will have no liability with respect to any compromise or settlement of such Indemnified Party's counsel to claims made without its consent. Notwithstanding the extent that such Indemnified foregoing, if a Requesting Party has been advised by counsel determines in good faith that there is a reasonable likelihood probability that a proceeding may adversely affect it or its Affiliates other than as a result of conflict of interest between monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnified Requesting Party and may, by notice to the Indemnitor; (c) , assume the exclusive right to defend, compromise, or settle such proceeding, but the Indemnitor shall will not have the right to settle be bound by any third Person claim determination in any such proceeding so defended or by any compromise or settlement effected in any proceeding so defended without the its consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall may not settle or compromise such third Person claimbe unreasonably withheld).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Russ Berrie & Co Inc)
Third Person Claims. The Indemnitor (a) Subject to Section 10.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through one separate counsel (plus appropriate local counsel) of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and provided further that the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within fourteen (14) days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages or, where the ACME Entities are the Indemnitor, will have no continuing effect in any material respect on the Company or Buyer or its Affiliates or their respective businesses, assets or operations, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing and at its own expense, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Third Person Claims. The (a) Subject to Section 8.4(b), the Indemnitor shall have the right to conduct ------------------- and control, through counsel of its choosingreasonably satisfactory to the Indemnified Party, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) and provided, further, that the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim not, without the written consent of the Indemnified Party (which written consent shall not be unreasonably withheld or delayed), pay, compromise or settle any such claim, action or suit, unless such settlement (i) releases involves only the payment of money damages, includes a complete and unconditional release of the Indemnified Party and does not provide for any action or affirmative refraining from all past and future liability concerning the subject matter of the any action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent part of the Indemnified Party. So long as Notwithstanding the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such claim, action or suit with respect to itself and its Affiliates without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld. The Indemnified Party shall not be entitled to assume the defense or settlement of any third Person claim for which an Indemnified Party has indicated it intends to seek indemnity hereunder unless the Indemnitor and the Indemnified Party agree that the Indemnified Party shall so assume the defense or settlement, or unless the Indemnitor fails to actually assume the defense of the third Person claim.
(b) If any third Person claim, action or suit against any Indemnified Party where Sellers and Owners are the Indemnitors, could have a Material Adverse Effect on the Business or the Purchased Assets, then the Indemnified Party shall have the right to conduct and control, through counsel reasonably satisfactory to the Indemnitor, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit with respect to itself and its Affiliates, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Third Person Claims. (a) In order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party, such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the third Person claim promptly after receipt by such Indemnified Party of written notice of the third Person claim; provided however, no delay by the Indemnified Party to notify the Indemnitor shall relieve the Indemnitor from any liability or obligation hereunder unless (and then solely to the extent that) the Indemnitor can demonstrate that it was damaged by such delay). Thereafter, the Indemnified Party shall deliver to the Indemnitor, promptly after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint promptly after receipt thereof and shall deliver to the Indemnitor promptly after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim.
(b) Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, the facts giving rise to an alleged basis for the claim and the amount of the liability asserted against the Indemnitor by reason of the claim. Subject to clause (c) below, in the event of the initiation of any legal proceeding, claim or demand against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice reasonably acceptable to the Indemnified Party and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense unless the Indemnified Party shall be a party to any such action and shall have received a written opinion of counsel that there exists an actual conflict of interest between the Indemnified Party and the Indemnitor with respect to the proceeding, claim or demand, in which case the Indemnified Party shall be entitled to participate in the defense of such proceeding, claim or demand with the Indemnitor paying for 50% of such expenses. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend or abandons such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense and settlement of such proceeding. Neither the Indemnitor nor the Indemnified Party may consent to entry of any judgment or settle any such proceeding which judgment or settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld. In the event the Indemnified Party shall refuse to consent to the settlement of any legal proceeding, claim or demand, so long as only money damages are involved, the liability of the Indemnitor for indemnification in respect of such legal proceeding, claim or demand shall not exceed the amount for which the legal proceeding, claim or demand could have been settled plus the amount of Expense incurred by the Indemnified Party prior to the time of the proposed settlement to which it is entitled to indemnification. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier's check within 30 days after the date of such notice.
(c) If any third Person claim, action or suit against any Indemnified Party is solely for injunctive relief or is reasonably likely to have a material adverse impact on the continuing operation of the Business (and, in each case, Buyer is the Indemnified Party), then the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosingchoosing and at the Indemnitor's expense, the defense, compromise or settlement of any such third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, hereunder and in any such case the Indemnified Party Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor Indemnified Party in connection therewith; provided, that (a) the Indemnified Party Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor Indemnified Party has so elected to conduct and control the defense thereof; and provided, further, that the Indemnified Party shall not, without the written consent of the Indemnitor (b) which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall pay for fail, within 14 days after the fees making of such request, to acknowledge and expenses of agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party's counsel to . Notwithstanding the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder.
(d) Notwithstanding anything contained herein to the contrary, Sellers shall have the exclusive right to assume the defense of, or otherwise contest or settle any claim, action, suit or proceeding described in Schedule 5.22 (which is an Excluded Liability). Buyer agrees to cooperate and assist Sellers with all reasonable requests (including, without limitation, making employees available for interviews, depositions and trials) and to afford Sellers access to any records, reports or other documents reasonably requested by Sellers in connection with such claims, actions, suits or proceedings.
(e) If there shall be any conflict between the provisions of this Section 11.4 relating to contests of third-party claims, and Section 8.2.3 relating to Tax contests, the provisions of Section 8.2.3 shall control with respect to Tax contests.
Appears in 1 contract
Third Person Claims. The Indemnitor (a) Subject to SECTION 11.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and provided, further, that the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within 14 days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages or, where any Seller is the Indemnitor, will have no continuing effect in any material respect on the Business or the Purchased Assets, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Third Person Claims. The Indemnitor shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any Indemnified Party (each a "Third-Person Claim") as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) that the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit Third-Person Claim as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) that the Indemnitor shall pay for the reasonable fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Third- Person claim Claim without the consent of -24- the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and has (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claim.
Appears in 1 contract
Third Person Claims. The (i) In order for a Party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party, such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the third person claim within fifteen (15) days after receipt by such Indemnified Party of written notice of the third person claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within five (5) business days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the third person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third person claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint within five (5) business days after receipt thereof and shall deliver to the Indemnitor within seven (7) business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third person claim.
(ii) In the event any legal proceeding shall be threatened or instituted or any claim or demand shall be asserted by any person in respect of which payment may be sought by one party hereto from another party under the provisions of this Section 9(d), the Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has actual knowledge which is covered by this indemnity to be forwarded to the Indemnitor. In the event of the initiation of any legal proceeding against -42- 47 the Indemnified Party by a third person, the Indemnitor shall have the sole and absolute right to conduct ------------------- and controlafter the receipt of notice, through counsel of at its choosing, the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, Liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense defense, negotiation or settlement of any such claimlegal proceeding, action claim or suit as to which demand. To the extent the Indemnitor has so elected elects not to conduct defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense thereof; (b) of such proceeding. Neither the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between nor the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to may settle any third Person claim such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit Liability or fault without the consent of the other party, such consent not to be unreasonably withheld or delayed; provided, that an Indemnitor may settle any such proceeding without the consent of the Indemnified Party unless so long as such settlement (i) releases the Indemnified Party from all past Liability with respect to such proceeding and future liability concerning the subject matter of the action and (ii) has no effect on the business does not provide for any injunctive or assets other continuing obligation of the Indemnified Party; Party or admit fault if such admission would materially damage the reputation of the Business. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and (d) the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall have no right arrive at a mutually binding agreement with respect to conduct or control any defense of a claim brought each separate matter alleged to be indemnified by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owning to the Indemnified Party by wire transfer, certified check or compromise bank cashier's check within 30 days after the date of such third Person claimnotice.
Appears in 1 contract
Third Person Claims. The Indemnitor shall have Promptly after the right to conduct ------------------- and control, through counsel receipt by any Axtive Indemnified Person of its choosing, the defense, compromise notice or settlement discovery of any third person claim, action or suit against proceeding (each a "Claim") by a person or entity not a party to this Agreement ("Third Person") giving rise to an Axtive Loss, Axtive or the Axtive Indemnified Person (if other than Axtive) shall give the Target Principal Shareholder written notice of such Claim in accordance with this Section 8.1. Within seven days of delivery of such written notice, the Target Principal Shareholder may, with Axtive's written consent, which consent shall not be unreasonably withheld, at the expense of the Target Principal Shareholder, elect to take all necessary steps properly to contest such Claim or to prosecute or defend such Claim to conclusion or settlement, provided that the Target Principal Shareholder pursues the same diligently and in good faith. If the Target Principal Shareholder makes the foregoing election, then he shall take all necessary steps to contest any Indemnified Party as such Claim or to which indemnification will be sought by prosecute or defend such Indemnified Party from any Indemnitor hereunderClaim to conclusion or settlement, and in shall notify Axtive and the Axtive Indemnified Person of the progress of any such case Claim, shall permit the Axtive Indemnified Party shall cooperate Person, at its expense, to participate in connection therewith and shall furnish such recordsprosecution, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; defense or settlement negotiations (provided, however, that (a) the Indemnified Party may participate, through counsel chosen by if a conflict of interest exists that would make it and at its own expenseinappropriate, in the defense reasonable opinion of any the Axtive Indemnified Person, for the same counsel to represent both the Axtive Indemnified Person and the Target Principal Shareholder in the resolution of such claimClaim, action or suit as to which then the Indemnitor has so elected to conduct and control the defense thereof; (b) the Indemnitor shall pay for Axtive Indemnified Person may retain separate counsel, the fees and expenses of such which shall not be borne by the Axtive Indemnified Party's counsel Person, but shall instead be borne by the Target Principal Shareholder as Axtive Losses) and shall provide the Axtive Indemnified Person with reasonable access to all relevant information and documents relating to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party Claim and the IndemnitorTarget Principal Shareholder's prosecution or defense thereof. If the Target Principal Shareholder does not timely make such election or fails diligently to pursue such prosecution, defense or settlement, then the Axtive Indemnified Person shall be free to contest such Claim or to prosecute or defend such Claim to conclusion or settlement through counsel of its choice, at the cost and expense of the Target Principal Shareholder, shall take all necessary steps regarding the same, shall notify the Target Principal Shareholder of the progress of any such Claim, shall permit the Target Principal Shareholder, at his expense, to participate in such prosecution or defense and shall provide the Target Principal Shareholder with reasonable access to all relevant information and documents relating to the Claim and the Axtive Indemnified Person's prosecution or defense thereof. Subject to the limitations set forth in this ARTICLE VIII, the Target Principal Shareholder shall reimburse the Axtive Indemnified Person for the amount paid in such settlement and any other liabilities or expenses incurred by the Axtive Indemnified Person in connection therewith as Axtive Losses. In either case, the party not in control of a Claim will fully cooperate, and will cause its counsel, if any, to fully cooperate, with the other party in the conduct of the prosecution or defense of such Claim. Neither party will compromise or settle any such Claim without the written consent of either the Axtive Indemnified Person (if the Target Principal Shareholder defends the Claim) or the Target Principal Shareholder (if the Axtive Indemnified Person defends the Claim), such consent not to be unreasonably withheld; (c) provided, however, that notwithstanding the Indemnitor foregoing, any Axtive Indemnified Person shall be entitled to refuse to consent to any such proposed settlement and the Target Principal Shareholder's liability hereunder shall not have be limited by the right to settle any third Person claim without the consent amount of the Indemnified Party unless proposed settlement if such settlement (i) releases does not provide for the Indemnified Party from all past and future liability concerning the subject matter complete release of the action and (ii) has no effect on the business or assets of the Axtive Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claimPerson.
Appears in 1 contract
Samples: Merger Agreement (Axtive Corp)
Third Person Claims. The (a) If the Indemnitor fails to notify the Indemnified Party by the expiration of the Notice Period that it desires to defend the Indemnified Party against any Third Person Claim, then the Indemnitor shall not have the right to assume the defense of such Third Person Claim. In such event, the Indemnified Party shall have the right to conduct and control, through counsel of its choosing, the defense of any Third Person Claim against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall provide access to employees and such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that:
(i) the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such Third Person Claim as to which the Indemnified Party has so elected to conduct and control the defense thereof; and
(ii) the Indemnified Party shall not, without the written consent of the Indemnitor (which consent shall not be unreasonably withheld), pay, compromise or settle any such Third Person Claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such Third Person Claim without such consent, provided, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder.
(b) Subject to Section 11.4(a), if the Indemnitor notifies the Indemnified Party by the expiration of the Notice Period that it desires to defend the Indemnified Party against any Third Person Claim, then the Indemnitor shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person claim, action or suit such Third Person Claim against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunderhereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect of the full amount thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish provide access to employees and such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit Third Person Claim as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . If the Indemnitor shall pay for elects to direct the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a any such claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderor proceeding, the Indemnified Party shall not settle pay, or compromise permit to be paid, any part of such third Third Person claim.Claim unless the Indemnitor consents in writing to such payment (which consent shall not be unreasonably withheld) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnitor is entered against the Indemnified Party for such Third Person Claim
Appears in 1 contract
Samples: Asset Purchase Agreement (Broadpoint Securities Group, Inc.)
Third Person Claims. The Indemnitor Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person claim, action or suit Third Person Claim against any such Indemnified Party (which, for the avoidance of doubt, shall mean that the Indemnified Party must be a party to such claim) as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor Indemnified Party in connection therewith; provided, that that:
(a) the Indemnified Party Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit Third Person Claim as to which the Indemnitor Indemnified Party has so elected to conduct and control the defense thereof; , and in any such case the Indemnified Party shall (i) consult with the Indemnitor, and furnish such records, information and testimony, as may be reasonably requested by the Indemnitor in connection therewith, (ii) provide the Indemnitor with a reasonable opportunity, subject to applicable filing deadlines, to comment on any material filing relating to such Third Person Claim prior to making such filing and (iii) permit the Indemnitor and its counsel to attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith (and shall provide reasonable advance notice of such matters to Indemnitor so as to facilitate such right to attend);
(b) the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such Third Person Claim, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall pay for fail, within 14 days after the fees making of such request, to acknowledge and expenses of agree in writing that, if such Third Person Claim shall be adversely determined, such Indemnitor has an obligation to provide indemnification under this Article VI to such Indemnified Party's counsel to the extent ; provided, that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) if the Indemnitor shall not have makes such acknowledgment and agreement and is participating in the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third such Third Person claim as Claim pursuant to which indemnification has been sought hereunderparagraph (a) above, the Indemnified Party shall not assert any material defense or otherwise take any material legal position with respect to such Third Person Claim that the Indemnitor, after good faith consultation with its counsel, reasonably believes is reasonably likely to cause a material increase to the amount to be indemnified by the Indemnitor with respect to such Third Person Claim pursuant to this Agreement; provided further, that in the exercise of its rights pursuant to the preceding proviso, the Indemnitor shall not unreasonably delay the resolution of such Third Person Claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such third Third Person claimClaim without such consent, provided, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is requested and is unreasonably withheld.
Appears in 1 contract
Samples: Option Agreement (Cephalon Inc)
Third Person Claims. The Indemnitor (a) Subject to Section 11.7(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Third Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, however, that the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and provided, further, that the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld, conditioned or delayed), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within 14 days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided, however, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any Third Person claim, action or suit against any Indemnified Party is solely for money damages or, where a Stockholder is the Indemnitor, will have no continuing effect in any material respect on the Stockholder, the Indemnified Party, the Business or the Assets, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such Third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, however, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit suit, as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided, further, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, conditioned or delayed in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Samples: Merger Agreement (Rose Hills Co)
Third Person Claims. The Indemnitor may elect, but shall have the right not ------------------- be required, to conduct ------------------- and control, through counsel of its choosingchoosing and reasonably satisfactory to the Indemnified Party, the defense, compromise or settlement of any third person claim, action Person Action or suit other claim against any an Indemnified Party as to which indemnification will be sought by such Indemnified Party from any such Indemnitor hereunder, and in the Indemnified Party hereby appoints the Indemnitor as its agent and attorney-in-fact for such purpose. In any such case with respect to which the Indemnitor has elected to conduct or control the defense thereof, the Indemnified Party shall cooperate fully in connection therewith and shall furnish such personnel, records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, provided that (a) -------- the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such Action or other claim, action or suit as to which however, the Indemnitor has so elected to conduct and its counsel shall control such defense. The Indemnitor shall not, without the defense thereof; (b) written consent of the Indemnified Party, pay, compromise or settle any such Action or other claim, except that the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to pay, settle or compromise any third Person Action or other claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body involving only money damages without the consent of the Indemnified Party. So long as , unless such Indemnified Party provides to the Indemnitor is defending an opinion of counsel to the effect that the proposed settlement would adversely affect the post-Closing tax liability of the Indemnified Party, in good faith any third Person which case the Indemnitor shall not pay, compromise, or settle such Action or other claim as to which indemnification has been sought hereunder, without the written consent of the Indemnified Party which consent shall not settle or compromise such third Person claimbe unreasonably withheld.
Appears in 1 contract
Samples: Coordinating Agreement (Exide Corp)
Third Person Claims. The Indemnitor In the event that any Parent Group Member becomes aware of any pending or threatened action at law or suit in equity by or against a third Person (which, ** Portions of the Exhibit have been omitted and have been filed separately pursuant to an application for confidential treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. for the avoidance of doubt, shall mean that a Parent Group Member must be a party to such claim) (each such action or suit being a “Third Person Claim”) which Parent reasonably believes will result in a demand against the Escrow Fund, (i) Parent shall promptly notify the Stockholders’ Representatives of such Third Person Claim, (ii) Parent shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, Third Person Claim and in any such case (iii) the Indemnified Party Stockholders’ Representatives shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor Parent in connection therewith; provided, that that:
(a) the Indemnified Party Stockholders’ Representatives may participate, through counsel chosen by it at least two of the three Stockholders’ Representatives (or one, if there shall be only one Stockholders’ Representative left) and at its their own expense, in the defense of any such claimThird Person Claim, action or suit and in any such case Parent shall (i) consult with the Stockholders’ Representatives, and furnish such records, information and testimony, as may be reasonably requested by the Stockholders’ Representatives in connection therewith, (ii) provide the Stockholders’ Representatives with a reasonable opportunity, subject to applicable filing deadlines, to comment on any material filing relating to such Third Person Claim prior to making such filing and (iii) permit the Stockholders’ Representatives and their counsel to attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Stockholders’ Representatives in connection therewith (and shall provide reasonable advance notice of such matters to Stockholders’ Representatives so as to which the Indemnitor has so elected facilitate such right to conduct and control the defense thereof; attend);
(b) Parent shall not, without the Indemnitor prior written consent of at least two of the three Stockholders’ Representatives (or one, if there shall pay for be only one Stockholders’ Representative left) (which written consent shall not be unreasonably withheld), pay, compromise or settle any such Third Person Claim, except that no such consent shall be required if (i) following a written request from Parent, at least two of the fees and expenses three Stockholders’ Representatives (or one, if there shall be only one Stockholders’ Representative left) shall fail, within 14 days after the making of such Indemnified Party's counsel request, to acknowledge and agree in writing that, if such Third Person Claim shall be adversely determined, indemnification shall be provided to Parent Group Members with respect to such Third Person Claim from the Escrow Fund under this Article XI or (ii) such Third Person Claim to be settled involves a civil or criminal or other charge made by a Governmental Body; provided, that if at least two of the three Stockholders’ Representatives (or one, if there shall be only one Stockholders’ Representative left) make such acknowledgment and agreement and are participating in the defense of a Third Person Claim described in clause (i) above pursuant to paragraph (a) above, Parent shall not assert any material defense or otherwise take any material legal position with respect to such Third Person Claim that at least two of the three Stockholders’ Representatives (or one, if there shall be only one Stockholders’ Representative left), after good faith consultation with their counsel, reasonably believe is reasonably likely to cause a material increase to the extent amount to be indemnified from the Escrow Fund with respect to such Third Person Claim pursuant to this Agreement; provided further, that such Indemnified Party has been advised by counsel that there is a reasonable likelihood in the exercise of conflict of interest between their rights pursuant to the Indemnified Party and preceding proviso, the Indemnitor; (c) the Indemnitor Stockholders’ Representatives shall not unreasonably delay the resolution of such Third Person Claim. In the event that at least two of the three ** Portions of the Exhibit have been omitted and have been filed separately pursuant to an application for confidential treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Stockolders’ Representatives (or one, if there shall be only one Stockholders’ Representative left) have consented to any such settlement, the Stockholders’ Representatives shall have no power or authority to object under Section 11.4 or any other provision of this Article XI to the amount paid in settlement of such Third Person Claim (provided, that the amount paid in settlement is equal to or less than the amount consented to by the Stockholders’ Representatives) of any claim by Parent, on its behalf or on behalf of any other Parent Group Member, against the Escrow Fund for indemnity with respect to such settlement. Notwithstanding the foregoing, Parent shall have the right to pay, settle or compromise any third such Third Person claim without the consent of the Indemnified Party unless such settlement Claim described in clause (i) releases the Indemnified Party from all past of paragraph (b) above without such consent, provided, that in such event Parent, on its behalf and future liability concerning the subject matter on behalf of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor other Parent Group Members, shall have no waive any right to conduct or control any defense of a claim brought by a Governmental Body without the indemnity therefor hereunder unless such consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claimrequested and is unreasonably withheld.
Appears in 1 contract
Samples: Merger Agreement (Cephalon Inc)
Third Person Claims. The Indemnitor (a) Subject to Section 10.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through one separate counsel (plus appropriate local counsel) of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and provided further that the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within fourteen (14) days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages or, where the ACME Entities are the Indemnitor, will have no continuing effect in any material respect on the Purchased Assets or Buyer or its Affiliates or their respective businesses, assets or operations, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing and at its own expense, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Third Person Claims. The Indemnitor (a) Subject to paragraph (b) below, the ------------------- Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor Indemnifying Party hereunder, and in any such case the Indemnifying Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that (i) the Indemnifying Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and (ii) the Indemnified Party shall not, without the written consent of the Indemnifying Party (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnifying Party shall fail, within 14 days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnifying Party has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages, the Indemnifying Party shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnifying Party hereunder if the Indemnifying Party has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor Indemnifying Party in connection therewith; provided, provided that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor Indemnifying Party has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnifying Party to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
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Third Person Claims. The (a) In order for an Indemnified Party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party (a "Third Person Claim"), such Indemnified Party must notify the Indemnitor in writing of the Third Person Claim within 10 days after receipt by such Indemnified Party of written notice thereof. Any notice of a Third Person Claim shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, the facts giving rise to an alleged basis for the claim and (if then known) the amount of the liability asserted against the Indemnitor by reason of the claim. Following such notice of a Third Person Claim, the Indemnified Party shall deliver to the Indemnitor, within five business days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating thereto. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a Third Person Claim, the -21- Indemnified Party must notify the Indemnitor with a copy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within seven business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the Third Person Claim.
(b) In the event any legal proceeding shall be threatened or instituted or any claim or demand shall be asserted in respect of a Third Party Claim, the Indemnitor shall have the sole and absolute right to conduct ------------------- and controlafter the receipt of the notice required by Section 7.4(a), through counsel of at its choosing, the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any such proceeding, claim or demand; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense defense, negotiation or settlement of any such claimlegal proceeding, action claim or suit as to which demand. To the extent the Indemnitor has so elected elects not to conduct defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense thereof; (b) of such proceeding. Neither the Indemnitor shall pay for nor the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, which consent shall not be unreasonably withheld. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been advised by counsel that there is a reasonable likelihood of conflict of interest between consummated, or the Indemnified Party and the Indemnitor; (c) Indemnitor shall arrive at an agreement with respect to each separate matter alleged to be indemnified by the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or compromise bank cashier's check within 30 days after the date of such third Person claimnotice.
Appears in 1 contract
Samples: Contribution Agreement (Moneygram Payment Systems Inc)
Third Person Claims. The Indemnitor (a) Subject to Section 11.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person claim, action or suit Third Person Claim against any such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in all reasonable respects in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that:
(i) the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such Third Person Claim as to which the Indemnified Party has so elected to conduct and control the defense thereof; and
(ii) the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld or delayed), pay, compromise or settle any such Third Person Claim, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within 14 days after the making of such request, to acknowledge and agree in writing that, if such Third Person Claim shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such Third Person Claim without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld or delayed. If the Indemnified Party does not elect to proceed with the defense of any such Third Person Claim, the Indemnitor may proceed with the defense of such Third Person Claim with counsel reasonably satisfactory to the Indemnified Party; provided, however, that the Indemnitor may not settle, adjust or compromise any such Third Person Claim without the prior written consent of the Indemnified Party (which consent may not be unreasonably withheld or delayed).
(b) If any Third Person Claim against any Indemnified Party (i) is solely for money damages (and where Sellers are the Indemnitor, the potential liability of Sellers exceeds the potential liability of Buyers thereunder), and (ii) where Sellers are the Indemnitor, will have no continuing effect in any material respect on the assets or properties or Business of the Acquired Companies or the Interests, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such Third Person Claim against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in all reasonable respects in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expenseit, in the defense of any such claim, action or suit Third Person Claim as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) , the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that which participation shall, unless there is a reasonable likelihood of conflict of interest between the Indemnitor and the Indemnified Party, be payable by the Indemnified Party. Notwithstanding the foregoing contained in this Section 11.4(b), the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to pay, settle or compromise any third such Third Person Claim, provided, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld or delayed, in which event no claim for indemnity therefor hereunder shall be waived. The Indemnitor may not settle, adjust or compromise any such Third Person Claim without the prior written consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business which consent may not be unreasonably withheld or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claimdelayed).
Appears in 1 contract
Samples: Equity Purchase Agreement (Kapstone Paper & Packaging Corp)
Third Person Claims. The Indemnitor Parent Group Member to be indemnified hereunder shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any Indemnified Party such Parent Group Member as to which indemnification will be sought by such Indemnified Party from any Indemnitor Parent Group Member hereunder, and in any such case the Indemnified Party Representative shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor Parent Group Member in connection therewith; provided, however, that (a) the Indemnified Party Representative may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor Parent Group Member has so elected to conduct and control the defense thereof; and provided further that the Parent Group Member shall not, without the written consent of the Representative (b) which written consent shall not be unreasonably withheld or delayed), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnitor Parent Group Member, the Representative shall pay for fail, within 14 days after the fees and expenses making of such Indemnified Party's counsel request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Parent Group Member shall be entitled to indemnification hereunder. Notwithstanding the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between foregoing, the Indemnified Party and the Indemnitor; (c) the Indemnitor Parent Group Member shall not have the right to pay, settle or compromise any such claim, action or suit without such consent; provided that in such event the Parent Group Member shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld. If the Representative has the right to conduct and control the defense, compromise or settlement of any Tax administrative or court proceeding or audit relating to Pre-Closing Taxes, the Representative shall not pay, compromise or settle any third Person claim such proceeding or audit without the written consent of the Indemnified Party unless such settlement Parent Group Member (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the which written consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle be unreasonably withheld or compromise such third Person claimdelayed).
Appears in 1 contract
Samples: Merger Agreement (Allscripts Healthcare Solutions Inc)
Third Person Claims. (a) In order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a Claim or demand made by any third Person against the Indemnified Party, such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the third Person Claim promptly after receipt by such Indemnified Party of written notice of the third Person Claim. Thereafter, the Indemnified Party shall promptly deliver to the Indemnitor copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person Claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person Claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint within five (5) Business Days after receipt thereof and shall deliver to the Indemnitor within seven (7) Business Days after the receipt of such complaint copies of notices and documents (including court papers) physically served upon the Indemnified Party relating to the third Person Claim. The failure of any Indemnified Party to give the Claim Notice promptly (or in five (5) Business Days in the case of service of a complaint upon the Indemnified Party) as required by this Section 10.4 shall not affect such Indemnified Party's rights under this Article X except to the extent such failure is actually prejudicial to the rights and obligations of the Indemnitor.
(b) In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right to conduct ------------------- and controlafter the receipt of notice, through counsel of at its choosing, the defense, compromise or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any Claim or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense defense, negotiation or settlement of any such claim, action Claim or suit as to which demand. To the extent the Indemnitor has so elected elects not to conduct defend such Claim or demand, and the Indemnified Party defends against or otherwise deals with any such Claim or demand, the Indemnified Party may retain counsel, reasonably acceptable to the Indemnitor, at the expense of the Indemnitor, and control the defense thereof; (b) of such Claim or demand. Neither the Indemnitor shall pay for nor the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party may settle any such Claim or demand which settlement obligates the other party to pay money, to perform obligations or to admit liability, without the consent of the other party, such consent not to be unreasonably withheld. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been advised by counsel that there is a reasonable likelihood of conflict of interest between consummated, or the Indemnified Party and the Indemnitor; (c) Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums for which indemnification under this Article X is provided so owing to the Indemnified Party by wire transfer, certified or compromise bank cashier's check within thirty (30) days after the date of such third Person claimnotice.
(c) To the extent of any inconsistency between this Section 10.4 and Section 7.1(c), the provisions of Section 7.1(c) shall control.
Appears in 1 contract
Third Person Claims. The Indemnitor (i) Subject to Section 12.6(ii), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, and at Indemnified Party's expense, the defense, compromise or settlement of any Claim or Proceeding against such Indemnified Party whether or not indemnification will be sought by any Indemnified Party from any Indemnifying Party hereunder, and in any such case the Indemnifying Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that the Indemnifying Party may participate, through counsel chosen by it and at its own expense, in the defense of any such Claim or Proceeding as to which the Indemnified Party has so elected to conduct and control the defense thereof; and provided, further, that the Indemnified Party shall not, without the written consent of the Indemnifying Party (which written consent shall not be unreasonably withheld), pay, compromise or settle any such Claim or Proceeding, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnifying Party shall fail, within 21 days after the date such request is deemed delivered, to acknowledge and agree in writing that, if such Claim or Proceeding shall be adversely determined, such Indemnifying Party has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall
(ii) If any Claim or Proceeding against any Indemnified Party is solely for money damages or, where Seller is the Indemnifying Party, will have no continuing effect in any material respects on the ESP Business, then the Indemnifying Party shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunderIndemnifying Party hereunder if the Indemnifying Party has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor Indemnifying Party in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor Indemnifying Party has so elected to conduct and control the defense thereof; (b) defense. Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnifying Party to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Samples: Asset Purchase Agreement (Accumed International Inc)
Third Person Claims. The Indemnitor (a) Subject to paragraph (b) of this SECTION 11.4, the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; PROVIDED, that the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and PROVIDED, FURTHER, that the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within 14 days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages or, where Seller is the Indemnitor, will have no continuing effect in any material respect on Buyer's ability to manufacture, produce or sell the products of the Business, including any upgrades thereto, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Parties in respect thereof, and in any such case the Indemnified Parties shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; providedPROVIDED, that (a) the Indemnified Party Parties may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwith- standing the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between foregoing, the Indemnified Party and the Indemnitor; (c) the Indemnitor Parties shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderpay, the Indemnified Party shall not settle or compromise any such third Person claim, action or suit, PROVIDED that in such event the Indemnified Parties shall waive any right to indemnity therefor hereunder.
Appears in 1 contract
Third Person Claims. The Indemnitor shall have Promptly after the right receipt by any Target Indemnified Person of notice or discovery of any Claim by a Third Person giving rise to conduct ------------------- and control, through counsel of its choosinga Target Loss, the defenseTarget Indemnified Person shall give Axtive written notice of such Claim in accordance with this Section 8.2. Within seven days of delivery of such written notice, compromise Axtive may, with the Target Principal Shareholder's written consent, which consent shall not be unreasonably withheld, at the expense of Axtive, elect to take all necessary steps properly to contest such Claim or to prosecute or defend such Claim to conclusion or settlement, provided that Axtive pursues the same diligently and in good faith. If Axtive makes the foregoing election, then Axtive shall take all necessary steps to contest any such Claim or to prosecute or defend such Claim to conclusion or settlement, and shall notify the Target Indemnified Person of the progress of any such Claim, shall permit the Target Indemnified Person, at its expense, to participate in such prosecution, defense or settlement of any third person claim, action or suit against any Indemnified Party as to which indemnification will be sought by such Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; negotiations (provided, however, that (a) the Indemnified Party may participate, through counsel chosen by if a conflict of interest exists that would make it and at its own expenseinappropriate, in the defense reasonable opinion of any the Target Indemnified Person, for the same counsel to represent both the Target Indemnified Person and Axtive in the resolution of such claimClaim, action or suit as to which then the Indemnitor has so elected to conduct and control the defense thereof; (b) the Indemnitor shall pay for Target Indemnified Person may retain separate counsel, the fees and expenses of such which shall not be borne by the Target Indemnified Party's counsel Person, but shall instead be borne by Axtive as Target Losses) and shall provide the Target Indemnified Person with reasonable access to all relevant information and documents relating to the extent that Claim and Axtive's prosecution or defense thereof. If Axtive does not timely make such election or fails diligently to pursue such prosecution, defense or settlement, then the Target Indemnified Party has been advised by Person shall be free to contest such Claim or to prosecute or defend such Claim to conclusion or settlement through counsel that there is a of its choice, at the cost and expense of Axtive, shall take all necessary steps regarding the same, shall notify Axtive of the progress of any such Claim, shall permit Axtive, at its expense, to participate in such prosecution or defense and shall provide Axtive with reasonable likelihood of conflict of interest between access to all relevant information and documents relating to the Indemnified Party Claim and the IndemnitorTarget Indemnified Person's prosecution or defense thereof. Subject to the limitations set forth in this ARTICLE VIII, Axtive shall reimburse the Target Indemnified Person for the amount paid in such settlement and any other liabilities or expenses incurred by the Target Indemnified Person in connection therewith as Target Losses. In either case, the party not in control of a Claim shall fully cooperate, and shall cause its counsel, if any, to fully cooperate, with the other party in the conduct of the prosecution or defense of such Claim. Neither party shall compromise or settle any such Claim without the written consent of either the Target Indemnified Person (if Axtive defends the Claim) or Axtive (if the Target Indemnified Person defends the Claim), such consent not to be unreasonably withheld; (c) provided, however, that notwithstanding the Indemnitor foregoing, any Target Indemnified Person shall be entitled to refuse to consent to any such proposed settlement and the Axtive's liability hereunder shall not have be limited by the right to settle any third Person claim without the consent amount of the Indemnified Party unless proposed settlement if such settlement (i) releases does not provide for the Indemnified Party from all past and future liability concerning the subject matter complete release of the action and (ii) has no effect on the business or assets of the Target Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall not settle or compromise such third Person claimPerson.
Appears in 1 contract
Samples: Merger Agreement (Axtive Corp)
Third Person Claims. The Indemnitor (a) Subject to Section 8.4(b), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and provided, further, that the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within ten (10) days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages or, where Seller, Parent or any Shareholder is the Indemnitor, will have no continuing effect on the Business or the Purchased Assets, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Third Person Claims. The Indemnitor 10.3.1 Subject to Section 10.3.2 hereof, the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person claim, action or suit Third Person Claim against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that:
(a) the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such Third Person Claim as to which the Indemnified Party has so elected to conduct and control the defense thereof; and
(b) the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such Third Person Claim; provided that if the Indemnitor withholds such consent, or fails to grant such consent within fourteen (14) days after written request from the Indemnified Party, and such Third Person Claim shall be adversely determined, then the Indemnitor shall have an obligation to provide indemnification hereunder to the Indemnified Party without regards to the Liability Limitation (as hereinafter defined), but such indemnification shall exclude the amount, if any, by which the proposed settlement amount exceeds the Liability Limitation; provided, that, in no event shall such exclusion reduce the indemnification provided hereunder below the Liability Limitation. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such Third Person Claim without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld or delayed.
10.3.2 If any Third Person Claim against any Indemnified Party is solely for money damages not in excess of the Liability Limitation, where Seller is the Indemnitor, and such Third Person Claim will have no continuing effect in any material respect on the Properties, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such Third Person Claim against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith, such cooperation to be at no cost or expense to the Indemnified Party; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit Third Person Claim as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Third Person claimClaim, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cole Credit Property Trust V, Inc.)
Third Person Claims. The Indemnitor (a) Subject to SECTION 10.4(B), the Indemnified Party shall have the right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third person Person claim, action or suit against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; PROVIDED, that the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and PROVIDED, FURTHER, that the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within 14 days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, PROVIDED that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages or, where Seller is the Indemnitor, will have no continuing effect in any material respect on the Business or the Purchased Assets, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the -48- Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; providedPROVIDED, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any third Person claim without the consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunderforegoing, the Indemnified Party shall not have the right to pay, settle or compromise any such third Person claim, action or suit, PROVIDED that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
Appears in 1 contract
Samples: Asset Purchase Agreement (Hastings Manufacturing Co)
Third Person Claims. The (a) Subject to Section 8.5(b), the Indemnitor shall have the right to conduct ------------------- and control, through counsel of its choosingchoosing (subject to the consent of the Indemnified Person, which consent shall not be unreasonably withheld), the defense, compromise or settlement of any third person claim, action or suit such Third Person Claim against any such Indemnified Party as to which indemnification will be sought by such any Indemnified Party from any Indemnitor hereunderIndemnitor, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit Third Person Claim as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) . Notwithstanding the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such Third Person Claim, provided, however, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder and all other rights to recover on such claim from the IndemnitorIndemnitor unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived; (c) provided, further, that such settlement or compromise shall include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a full release from all liability in respect of such claim or litigation. Notwithstanding anything herein to the contrary, the Indemnitor shall not have the right to settle or compromise any third Third Person claim Claim without the prior written consent of the Indemnified Party which shall not be unreasonably withheld, unless such the terms of any settlement or compromise provide for (i) releases no relief other than the payment of monetary damages for which the Indemnified Party from all past and future liability concerning the subject matter of the action will be indemnified in full and (ii) has no effect on the business or assets a full release of the Indemnified Party; and Party for all liability in respect of such claim or litigation.
(db) Notwithstanding the provisions of paragraph (a) above which grant to the Indemnitor the right to assume the defense of a Third Person Claim, if (i) the Indemnitor shall have no right elects not to conduct assume the defense or control fails to assume the defense in a timely manner, (ii) the Indemnitor and any defense Indemnified Party are both parties to or subjects of such Third Person Claim and a claim brought by a Governmental Body without conflict of interests exists between the consent Indemnitor and such Indemnified Party which has the potential of materially and adversely affecting the interests of the Indemnified Party. So long as Party in the Indemnitor is defending defense of such Third Person Claim or (iii) the Indemnified Party reasonably determines in good faith any third Person claim as to which indemnification has been sought hereunder, that the Indemnified Party or its Affiliates are reasonably likely to be adversely affected in any material respect in such Third Person Claim other than as a result of monetary damages, then the Indemnified Party may conduct its own defense and employ counsel reasonably satisfactory to the Indemnitor to represent or defend it against such Third Person Claim, in which case the Indemnitor will pay the reasonable Expenses of such counsel. If the Indemnified Party retains its own counsel, the Indemnitor shall not settle or compromise such third reasonably cooperate in providing information to and consulting with the Indemnified Party about the Third Person claimClaim.
Appears in 1 contract
Samples: Asset Purchase Agreement (Graymark Healthcare, Inc.)
Third Person Claims. The Indemnitor shall have the right to conduct ------------------- and control(a) Any party seeking indemnification provided for under this Agreement in respect of, through counsel arising out of its choosing, the defense, compromise or settlement of involving a claim or demand made by any third person claim, action or suit Person against any the Indemnified Party as to which indemnification will be sought other than a Specified Proceeding (a “Third Person Claim”) shall notify the Indemnitor in writing, and in reasonable detail, of the Third Person Claim within ten (10) Business Days (or reasonably more promptly dependent upon the circumstances) after receipt by such Indemnified Party from any Indemnitor hereunderof written notice of the Third Person Claim. Thereafter, and in any such case the Indemnified Party shall cooperate in connection therewith deliver to the Indemnitor, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested documents (including court papers) received by the Indemnified Party relating to the Third Person Claim. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall refer to the provision of this Agreement upon which such claim is based and describe in reasonable detail (to the extent known) the facts giving rise to an alleged basis for the claim and the amount of the liability asserted against the Indemnitor in connection therewithby reason of the Third Person Claim; provided, however, that (a) the failure or delay of the Indemnified Party may participateto give any notices or deliver any documents to the Indemnitor as provided in this Section 10.4 shall not relieve the Indemnitor of its obligations hereunder except to the extent the Indemnitor shall have been prejudiced by such failure.
(b) In the event of the initiation of a Third Person Claim, through counsel chosen by the Indemnitor, provided it shall have given written notice to the Indemnified Party of its decision to do so within thirty (30) days of its receipt of the Claim Notice with respect to such Third Person Claim, shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any Proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such Proceeding with counsel of its choice and at its expense; provided further, however, that the Indemnitor shall not be entitled to assume or continue control of the defense of any Third Person Claim if (i) the Third Person Claim relates to or arises in connection with any criminal Proceeding or (ii) the Indemnitor fails to provide notice of its decision to control the defense of such claimThird Person Claim within the time period described above or (iii) if the Indemnitor is Seller, action a reasonable assessment of the likely amount of such Third Person Claim is in excess of the amount of the Cap less the amount of any indemnification claims theretofore paid by Seller and any indemnification claims then pending against Seller or suit as to (iv) the Third Person Claim seeks an injunction or equitable relief against any Indemnified Party; provided further, however, that if the Indemnitor and the Indemnified Party determine that such injunction or equitable relief portion of any Third Person Claim can be so separated from the portion for monetary damages for which the Indemnified Party would be entitled to indemnification under this Agreement, the Indemnitor has so elected shall be entitled to conduct assume the defense of the portion relating to monetary damages for which the Indemnified Party would be entitled to indemnification under this Agreement. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any Third Person Claim. To the extent the Indemnitor elects not to defend such Third Person Claim and the Indemnified Party defends against or otherwise deals therewith, the Indemnified Party may retain counsel at the expense of the Indemnitor (which Expenses shall be recoverable from time to time by Indemnified Party), which counsel shall be reasonably acceptable to the Indemnitor, and control the defense thereofof such Proceeding; (b) provided, however, that the Indemnitor shall be obligated pursuant to this Section 10.4 to pay for only one firm of counsel for all Indemnified Parties. Neither the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party has been advised by counsel that there is a reasonable likelihood of conflict of interest between Indemnitor nor the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to may settle any third Person claim such Proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the Indemnified Party unless other party, such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business consent not to be unreasonably withheld, conditioned or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnified Partydelayed. So long as the Indemnitor is defending in good faith any third Person claim as to which indemnification has been sought hereunder, If the Indemnified Party shall refuse to consent to the settlement of any Third Person Claim, so long as only money damages are involved and there is no admission of liability or wrongdoing with respect to the Indemnified Party, the liability of the Indemnitor in respect of such Third Person Claim shall not settle or compromise such third exceed the amount for which the Third Person claimClaim could have been settled plus the amount of expenses incurred by the Indemnified Party prior to the time of and in connection with the proposed settlement to which it is entitled to indemnification.
(c) To the extent of any inconsistency between this Section 10.4 and Section 7.1(c) (relating to Tax contests), the provisions of Section 7.1(c) shall control with respect to Tax contests.
Appears in 1 contract
