Claim Procedures. (a) In order for an Investor Indemnified Party or an AT&T Indemnified Party (any of them, an “Indemnified Party”) to duly make a valid claim under Section 8.2 or Section 8.3, the Indemnified Party must (promptly, but in no event more than 20 Business Days, following the first date following the Closing Date on which such Indemnified Party has knowledge of facts, matters or circumstances from which it is reasonably apparent that such an occurrence is likely to have occurred; provided, that no failure to give notice of such claim prior to the expiration of such 20 Business Day period will relieve such Indemnifying Party from any obligation under this Article VIII, except to the extent such failure actually and materially prejudices such Indemnifying Party) provide written notice to AT&T (for claims made by Investor Indemnified Parties) or to Investor (for claims made by AT&T Indemnified Parties) (the recipient of such notice, the “Indemnifying Party”), which notice shall set forth a description in reasonable detail of the occurrence(s) specified in Section 8.2 or Section 8.3 which the Indemnified Party alleges to have occurred, a reasonable description of the facts and circumstances giving rise to such occurrences in light of the facts and circumstances then known to the Indemnified Party, the estimated amount of Losses actually incurred or suffered as the result thereof (to the extent then ascertainable), and a description of any other remedy sought in connection therewith, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, that no defect in the information contained in such Claim Notice from the Indemnified Party to any Indemnifying Party will relieve such Indemnifying Party from any obligation under this Article VIII except to the extent such defect actually and materially prejudices such Indemnifying Party. The Indemnified Party shall cooperate with and provide to the Indemnifying Party such information under the Indemnified Party’s control as the Indemnifying Party may reasonably request for the purposes of determining the validity of the allegations made in the Claim Notice and shall keep the Indemnifying Party reasonably and promptly informed of factual and procedural developments (including additional information which may come under the Indemnified Party’s control) in connection therewith. The Indemnifying Party and the Indemnified Party shall use reasonable best efforts to avoid production of confidential information (consistent with applicable Law) to third parties and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work product privileges. (b) In the event the Claim Notice results from any Action asserted or threatened against, the Indemnified Party by a third party (other than a Tax Claim) (a “Third Party Claim”): (i) The Indemnified Party shall provide the Claim Notice to the Indemnifying Party no later than the 20th Business Day following the Indemnified Party’s receipt of the Third Party Claim, and in any event no later than the 20th Business Day preceding the date by which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding; provided that if either such Business Day occurs on or prior to the Closing Date, the Claim Notice shall be timely provided if it is provided no later than the Business Day following the Closing Date; provided, that no failure by the Indemnified Party to give such Claim Notice during such 20 Business Day period will relieve the Indemnifying Party from any obligation under this Article VIII, except to the extent such failure actually and materially prejudices such Indemnifying Party. (ii) During the period ending on the earlier of the 15th calendar day following the Indemnifying Party’s receipt of the Claim Notice and the fifth calendar day preceding the date on which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, the Indemnifying Party shall be entitled to notify the Indemnified Party of its election to assume and control the defense of the Third Party Claim, stating that the Indemnifying Party will, and thereby covenants to, indemnify, defend and hold harmless the Indemnified Party from and against the entirety of any and all Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim. (A) In the event that the Indemnifying Party duly and timely makes such election, the Indemnifying Party shall defend the Indemnified Party by appropriate proceedings and shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense and the settlement, arbitration, litigation and appellate strategy relating to the Third Party Claim; provided, however, that no Indemnifying Party shall have the right to assume control of the defense of such Third Party Claim if: (i) it relates to or otherwise arises in connection with any criminal or regulatory enforcement Action, (ii) it seeks injunctive or equitable relief, (iii) the Indemnified Party shall have reasonably concluded that there exists an actual or potential conflict of interest between the Indemnifying Party and the Indemnified Party in connection with the defense of the Third Party Claim, (iv) settlement of, an adverse judgment with respect to, or the conduct of the defense of the Third Party Claim by the Indemnifying Party is, in the good faith judgment of the Indemnified Party, likely to be adverse to, the Indemnified Party’s reputation or continuing business interests (including its relationships with current or potential customers, suppliers or other parties material to the conduct of its business), (v) at any point the Indemnifying Party fails to conduct the defense of the Third Party Claim actively and diligently or (vi) such Third Party Claim is primarily related to Taxes. The Indemnified Party shall be entitled but not obligated to participate in any such defense and to employ separate counsel of its choosing for such purpose; provided, that the fees and expenses shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this Section 8.4 unless the Indemnifying Party fails to conduct the defense of the Third Party Claim actively and diligently. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall not consent to the entry of any judgment or enter into any compromise or settlement with respect to such claims without the prior written consent of the Indemnified Party (which consent shall not be unreasonably conditioned, withheld or delayed), unless such judgment, settlement, compromise or offer to settle, compromise or cease to defend such Third Party Claim (i) provides for the payment by the Indemnifying Party of money as sole relief for the claimant, (ii) results in the full and general release of all Indemnified Parties from all liabilities arising or relating to, or in connection with, the Third Party Claim, and (iii) involves no finding or admission of any violation of Law or the rights of any Person and no effect on any other claims that may be made against the Indemnified Party or any of its Affiliates or NewCo or and of its Subsidiaries. (B) If the Indemnifying Party does not duly and timely make such election, or otherwise at any time fails to conduct the defense of the Third Party Claim actively and diligently, the Indemnified Party shall be entitled but not obligated (subject to Section 8.6) to notify the Indemnifying Party of its election to assume and control such defense from the Indemnifying Party, whereupon the Indemnified Party and not the Indemnifying Party shall have the powers described in the first sentence of Section 8.4(b)(ii)(A); provided that the Indemnified Party’s right to be indemnified, defended, held harmless and reimbursed in respect of the Third Party Claim shall not otherwise be affected by such election; provided, further, that the Indemnified Party may not settle any such matter without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed) if the Indemnified Party is seeking or shall seek indemnification hereunder with respect to such matter, unless the Indemnified Party assumed control of the defense of the Third Party Claim because the Indemnifying Party failed to conduct such defense actively and diligently. In the event that the Indemnified Person conducts the defense of the Third Party Claim pursuant to this Section 8.4(b)(ii)(B), the Indemnifying Party will (i) advance the Indemnified Person promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses) and (ii) remain responsible for any and all other Losses that the Indemnified Person may incur or suffer resulting from, arising out of, relating to, in the nature of or caused by the Third Party Claim to the fullest extent provided in this Article VIII. Except as expressly contemplated by this Section 8.4(b)(ii)(B), the Indemnifying Party shall have no liability with respect to a Third Party Claim settled without its prior written consent. (iii) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate investigation and defense of all Third Party Claims, including by providing reasonable access to each other’s relevant business records, documents and employees, for purposes of investigation, document production, testimony and otherwise. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third Party Claims. The Person controlling the defense of a Third Party Claim shall in good faith allow the Indemnifying Party or Indemnified Party, as the case may be, to make comments to the materials filed or submitted in such defense, and shall consider such comments in good faith.
Appears in 1 contract
Sources: Agreement of Contribution and Subscription (At&t Inc.)
Claim Procedures. (a) In order for an Investor Indemnified A Party or an AT&T Indemnified Party that seeks indemnity under this Article 10 (any of them, an “Indemnified Party”) to duly make a valid claim under Section 8.2 or Section 8.3, the Indemnified Party must (promptly, but in no event more than 20 Business Days, following the first date following the Closing Date on which such Indemnified Party has knowledge of facts, matters or circumstances from which it is reasonably apparent that such an occurrence is likely to have occurred; provided, that no failure to will give notice of such claim prior to the expiration of such 20 Business Day period will relieve such Indemnifying Party from any obligation under this Article VIII, except to the extent such failure actually and materially prejudices such Indemnifying Party) provide written notice to AT&T (for claims made by Investor Indemnified Parties) or to Investor (for claims made by AT&T Indemnified Parties) (the recipient of such notice, the “Indemnifying Party”), which notice shall set forth a description in reasonable detail of the occurrence(s) specified in Section 8.2 or Section 8.3 which the Indemnified Party alleges to have occurred, a reasonable description of the facts and circumstances giving rise to such occurrences in light of the facts and circumstances then known to the Indemnified Party, the estimated amount of Losses actually incurred or suffered as the result thereof (to the extent then ascertainable), and a description of any other remedy sought in connection therewith, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided) to the Party from whom indemnification is sought (an “Indemnifying Party”) containing (i) a description and, that no defect in if known, the information contained in such estimated amount, of any Losses incurred or reasonably expected to be incurred by the Indemnified Party, (ii) a reasonably detailed explanation of the basis for the Claim Notice from to the extent of the facts then known by the Indemnified Party, and (iii) a demand for payment of those Losses in accordance with the terms hereof. Within thirty (30) days after delivery of a Claim Notice, the Indemnifying Party will deliver to the Indemnified Party to any a written response in which the Indemnifying Party will relieve such Indemnifying Party from any obligation under this Article VIII except to either: (A) agree that the extent such defect actually and materially prejudices such Indemnifying Party. The Indemnified Party shall cooperate with and provide is entitled to receive all of the Indemnifying Party such information under Losses at issue in the Claim Notice; or (B) dispute the Indemnified Party’s control as entitlement to indemnification by delivering to the Indemnifying Indemnified Party may reasonably request a written notice (an “Objection Notice”) setting forth in reasonable detail each disputed item, the basis for the each such disputed item and certifying that all such disputed items are being disputed in good faith. For purposes of determining this Article 10, (x) if the validity of the allegations made in the Claim Notice and shall keep the Indemnifying Party reasonably and promptly informed of factual and procedural developments Purchaser (including additional information which may come under or any other Purchaser Indemnified Party) comprises the Indemnified Party’s control) in connection therewith. The , any references to Indemnifying Party (except provisions relating to an obligation to make or receive payments) shall be deemed to refer to the Seller, and (y) if the Purchaser comprises the Indemnifying Party, any references to the Indemnified Party shall use reasonable best efforts be deemed to avoid production refer to the Seller. If an Indemnified Party delivers, before the expiration of confidential information (consistent with the applicable Law) survival period described in Section 10.5, a Claim Notice to third parties and to cause all communications among employeesthe Indemnifying Party, counsel and others representing any party to a Third Party Claim to then such applicable survival period shall be made so as to preserve any applicable attorney-client or work product privilegesdeemed extended until the final resolution thereof.
(b) In Any indemnification payments pursuant to this Article 10 will be made within five (5) Business Days after the event the Claim Notice results from any Action asserted or threatened against, the Indemnified Party by a third party (other than a Tax Claim) (a “Third Party Claim”):
earliest of (i) The Indemnified Party shall provide the Claim Notice to date on which the Indemnifying Party no later than the 20th Business Day following the Indemnified Party’s receipt amount of such payments are determined by mutual agreement of the Third Party ClaimSeller and the Purchaser, and in any event no later than the 20th Business Day preceding the date by which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding; provided that if either such Business Day occurs on or prior to the Closing Date, the Claim Notice shall be timely provided if it is provided no later than the Business Day following the Closing Date; provided, that no failure by the Indemnified Party to give such Claim Notice during such 20 Business Day period will relieve the Indemnifying Party from any obligation under this Article VIII, except to the extent such failure actually and materially prejudices such Indemnifying Party.
(ii) During if an Objection Notice has not been timely delivered, the period ending thirtieth (30th) day after the delivery of a Claim Notice and (iii) if an Objection Notice has been timely delivered, the date on the earlier of the 15th calendar day following which both such amount and the Indemnifying Party’s receipt obligation to pay such amount have been finally determined by a final Judgment of a court having jurisdiction over such Proceeding as permitted by Section 11.10.
(c) With respect to any claim that a Purchaser Indemnified Party may have under Section 10.1(a) (other than in respect of a breach of or inaccuracy in a Fundamental Representation or a representation or warranty set forth in Section 4.14 (Tax Matters)) that is covered on the face of the Claim Notice R&W Insurance Policy, it shall be recovered exclusively under the R&W Insurance Policy. With respect to any claim that a Purchaser Indemnified Party may have under Section 10.1(a) that is based upon a breach of or inaccuracy in a Fundamental Representation or a representation or warranty set forth in Section 4.14 (Tax Matters), it shall be recovered first from the R&W Insurance Policy (to the extent covered on the face thereof and to the fullest amount which can be recovered thereunder with respect to a breach of or inaccuracy in such representation or warranty), and then the Escrow Amount, and then, to the extent that the amount available under the R&W Insurance Policy is exhausted and the fifth calendar day preceding Escrow Amount is exhausted or released, directly from the date on which Seller. With respect to any claim that a Purchaser Indemnified Party may have under Section 10.1(a) that is based upon an appearance is required Excluded Representation or under Section 2.4 with respect to be made before a courtany Leakage, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, the Indemnifying Party it shall be entitled first recovered from the Escrow Amount and then, to notify the extent that the Escrow Amount is exhausted or released, directly from the Seller. With respect to any claim that a Purchaser Indemnified Party of its election may have under Section 10.1(b), (c), (d), (f), or (g), it shall be first recovered from the Escrow Amount and then, to assume and control the defense of the Third Party Claim, stating extent that the Indemnifying Party willEscrow Amount is exhausted or released, and thereby covenants todirectly from the Seller. For the avoidance of doubt, indemnify, defend and hold harmless the neither this Section 10.3(c) nor any other provision of this Agreement will inhibit any Purchaser Indemnified Party from and against the entirety of obtaining any and all Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim.
(A) In the event remedy that the Indemnifying Party duly and timely makes such election, the Indemnifying Party shall defend the Indemnified Party by appropriate proceedings and shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense and the settlement, arbitration, litigation and appellate strategy relating to the Third Party Claim; provided, however, that no Indemnifying Party shall have the right to assume control of the defense of such Third Party Claim if: (i) it relates to or otherwise arises in connection with any criminal or regulatory enforcement Action, (ii) it seeks injunctive or equitable relief, (iii) the Indemnified Party shall have reasonably concluded that there exists an actual or potential conflict of interest between the Indemnifying Party and the Indemnified Party in connection with the defense of the Third Party Claim, (iv) settlement of, an adverse judgment with respect to, or the conduct of the defense of the Third Party Claim by the Indemnifying Party is, in the good faith judgment of the Indemnified Party, likely to be adverse to, the Indemnified Party’s reputation or continuing business interests (including its relationships with current or potential customers, suppliers or other parties material to the conduct of its business), (v) at any point the Indemnifying Party fails to conduct the defense of the Third Party Claim actively and diligently or (vi) such Third Party Claim is primarily related to Taxes. The Indemnified Party shall be entitled but not obligated to participate in any such defense and to employ separate counsel of its choosing for such purpose; provided, that the fees and expenses shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this Section 8.4 unless the Indemnifying Party fails to conduct the defense of the Third Party Claim actively and diligently. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall not consent to the entry of any judgment or enter into any compromise or settlement with respect to such claims without the prior written consent of the Indemnified Party (which consent shall not be unreasonably conditioned, withheld or delayed), unless such judgment, settlement, compromise or offer to settle, compromise or cease to defend such Third Party Claim (i) provides for the payment by the Indemnifying Party of money as sole relief for the claimant, (ii) results in the full and general release of all Indemnified Parties from all liabilities arising or relating to, or in connection with, the Third Party Claim, and (iii) involves no finding or admission of any violation of Law or the rights of any Person and no effect on any other claims that may be made against the Indemnified Party Purchaser or any of its Affiliates may have against any insurer or NewCo or and under the R&W Insurance Policy. Any amount to be paid directly by the Seller pursuant to the foregoing in this Section 10.3(c) shall be paid directly by the Seller by wire transfer of its Subsidiariesimmediately available United States dollars from the Seller to an account designated by the Purchaser.
(d) On the third (3rd) Business Day after the date that falls twenty-four (24) months from the Closing Date (such date, the “Release Date”), the Seller and the Purchaser shall jointly instruct the Escrow Agent to disburse by wire transfer of immediately available funds from the Escrow Amount an amount, if any, equal to (i) the remaining balance of the Escrow Amount minus (ii) the aggregate amount of any claims which shall have been asserted to be recovered from the Escrow Amount by any Purchaser Indemnified Party in accordance with this Agreement on or prior to such date and which remain pending on such date (any such claim as of a specified date, an “Escrow Pending Claim”) to the Seller. To the extent that on or after the Release Date, any amount shall have been reserved and withheld from distribution from the Escrow Amount on account of an Escrow Pending Claim and, subsequent to the Release Date, such Escrow Pending Claim is resolved, the Seller and the Purchaser shall, within three (3) Business Days of the resolution of such Escrow Pending Claim, jointly instruct the Escrow Agent to disburse by wire transfer of immediately available funds from the Escrow Amount to (A) the Purchaser an amount, if any, equal to the amount of Loss due in respect of such claim as finally determined and (B) If an amount, if any, equal to (x) the Indemnifying amount then held in the Escrow Amount minus (y) the aggregate amount of any then remaining Escrow Pending Claims, for distribution to the Seller.
(e) Notwithstanding anything to the contrary in this Article 10, in the event of an indemnification claim pursuant to Section 10.1(a) for which the Warranty Insurer notifies an Indemnified Party does not duly that it would be entitled to recover for such Losses from the R&W Insurance Policy but for the retention amount thereunder, the Seller and timely make the Purchaser shall immediately (and in no event later than three (3) Business Days after receipt of such electionnotice from the Warranty Insurer) jointly instruct the Escrow Agent to disburse by wire transfer of immediately available funds from the amount then remaining in the Escrow Amount to pay for such claim amount to such Indemnified Party, or otherwise at any time fails to conduct without the defense of the Third Party Claim actively and diligently, requirement for the Indemnified Party shall be entitled but not obligated (subject to deliver a Claim Notice or otherwise perform any of the other procedural requirements of an Indemnified Party under this Section 8.6) to notify 10.3; provided that, the Indemnifying Party of its election to assume and control such defense aggregate amount paid from the Indemnifying Party, whereupon Escrow Amount for the Indemnified Party and not the Indemnifying Party shall have the powers described in the first sentence of Section 8.4(b)(ii)(A); provided that the Indemnified Party’s right to be indemnified, defended, held harmless and reimbursed in respect reason of the Third Party Claim foregoing shall not otherwise be affected by such election; provided, further, that in no event exceed the Indemnified Party may not settle any such matter without the prior written consent product of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed) if the Indemnified Party is seeking or shall seek indemnification hereunder with respect to such matter, unless the Indemnified Party assumed control of the defense of the Third Party Claim because the Indemnifying Party failed to conduct such defense actively and diligently. In the event that the Indemnified Person conducts the defense of the Third Party Claim pursuant to this Section 8.4(b)(ii)(B), the Indemnifying Party will (i) advance the Indemnified Person promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses) and (ii) remain responsible for any and all other Losses that the Indemnified Person may incur or suffer resulting from, arising out of, relating to, in the nature of or caused Sale Ratio multiplied by the Third Party Claim to the fullest extent provided in this Article VIII. Except as expressly contemplated by this Section 8.4(b)(ii)(B), the Indemnifying Party shall have no liability with respect to a Third Party Claim settled without its prior written consentRetention Amount.
(iii) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate investigation and defense of all Third Party Claims, including by providing reasonable access to each other’s relevant business records, documents and employees, for purposes of investigation, document production, testimony and otherwise. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third Party Claims. The Person controlling the defense of a Third Party Claim shall in good faith allow the Indemnifying Party or Indemnified Party, as the case may be, to make comments to the materials filed or submitted in such defense, and shall consider such comments in good faith.
Appears in 1 contract
Claim Procedures. (a) In order for an Investor An Indemnified Party or an AT&T Indemnified shall give the Indemnifying Party (any of them, an “Indemnified Party”) to duly make a valid claim under Section 8.2 or Section 8.3, the Securityholder Representative Committee if the Indemnified Party must (promptly, but in no event more than 20 Business Days, following the first date following the Closing Date on is a Parent Indemnified Party) reasonably prompt notice of any matter which such an Indemnified Party has knowledge of facts, matters determined has given or circumstances from which it is would reasonably apparent that such an occurrence is likely give rise to have occurred; provided, that no failure to give notice of such claim prior to the expiration of such 20 Business Day period will relieve such Indemnifying Party from any obligation indemnification under this Article VIIIAgreement describing in reasonable detail, except to the extent such failure actually and materially prejudices such Indemnifying Party) provide written notice to AT&T (for claims made by Investor Indemnified Parties) or to Investor (for claims made by AT&T Indemnified Parties) (the recipient of such noticethen known, the “Indemnifying Party”), which notice shall set forth a description in reasonable detail of the occurrence(s) specified in Section 8.2 or Section 8.3 which the Indemnified Party alleges to have occurred, a reasonable description of the facts and circumstances giving rise with respect to such occurrences in light claim and stating the amount of the facts Loss, if known, and circumstances then known containing a reference to the Indemnified Party, the estimated amount provisions of Losses actually incurred this Agreement in respect of which such right of indemnification is claimed or suffered as the result thereof arises (to the extent then ascertainable), and a description of any other remedy sought in connection therewith, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (such notice a “Claim Notice”); provided. With respect to a breach of any representation or warranty, that no defect in the information contained in such Claim Notice from the Indemnified Party to any Indemnifying Party will relieve such Indemnifying Party from any obligation under this Article VIII except to the extent such defect actually and materially prejudices such Indemnifying Party. The Indemnified Party shall cooperate with and provide to the Indemnifying Party such information under the Indemnified Party’s control as the Indemnifying Party may reasonably request for the purposes of determining the validity of the allegations made in the Claim Notice and must be received on or prior to the date on which the representation or warranty on which such claim is based ceases to survive as set forth in Section 8.1, irrespective of whether the subject matter of such claim shall keep the Indemnifying Party reasonably and promptly informed of factual and procedural developments (including additional information which may come under the Indemnified Party’s control) in connection therewith. The Indemnifying Party and the Indemnified Party shall use reasonable best efforts to avoid production of confidential information (consistent with applicable Law) to third parties and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client have occurred before or work product privilegesafter such date.
(b) In If an Indemnified Party shall have received from the event Indemnifying Party (or the Securityholder Representative Committee if the Indemnified Party is a Parent Indemnified Party) within twenty (20) Business Days following delivery of a Claim Notice results by such Indemnified Party, a written notice setting forth the Indemnifying Party’s (or the Securityholder Representative Committee’s if the Indemnified Party is a Parent Indemnified Party) objections to the claim set forth in such Claim Notice and the Indemnifying Party’s (or the Securityholder Representative Committee’s if the Indemnified Party is a Parent Indemnified Party) reasons for such objection, then the parties shall negotiate in good faith for a period of at least twenty (20) Business Days from any Action asserted or threatened againstthe date the Indemnified Party receives such objection notice (such period is hereinafter referred to as the “Negotiation Period”). After the Negotiation Period, if the parties still cannot agree regarding such claim, the Indemnified Party by a third party (other than a Tax Claim) (a “Third Party Claim”):
(i) The Indemnified Party shall provide may, at any time thereafter, until the Claim Notice expiration of the applicable statute of limitations with respect to its claim for indemnification, commence legal proceedings against the Indemnifying Party no later than to enforce its rights to indemnification from and against any Losses described in the 20th Business Day following the Indemnified Party’s receipt of the Third Party Claim, and in any event no later than the 20th Business Day preceding the date by which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding; provided that if either such Business Day occurs on or prior to the Closing Date, the underlying Claim Notice shall be timely provided if it is provided no later than the Business Day following the Closing Date; provided, that no failure by the Indemnified Party to give such Claim Notice during such 20 Business Day period will relieve the Indemnifying Party from any obligation under this Article VIII, except to the extent such failure actually and materially prejudices such Indemnifying PartyNotice.
(ii) During the period ending on the earlier of the 15th calendar day following the Indemnifying Party’s receipt of the Claim Notice and the fifth calendar day preceding the date on which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, the Indemnifying Party shall be entitled to notify the Indemnified Party of its election to assume and control the defense of the Third Party Claim, stating that the Indemnifying Party will, and thereby covenants to, indemnify, defend and hold harmless the Indemnified Party from and against the entirety of any and all Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim.
(Ac) In the event that the Indemnifying Indemnified Party duly and timely makes such electioncommences an Action in order to recover Losses hereunder, upon final determination of a court of competent jurisdiction with respect thereto, the Indemnifying Party non-prevailing party in such Action shall defend reimburse the Indemnified Party by appropriate proceedings and shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense and the settlement, arbitration, litigation and appellate strategy relating to the Third Party Claim; provided, however, that no Indemnifying Party shall have the right to assume control of the defense of such Third Party Claim if: (i) it relates to or otherwise arises in connection with any criminal or regulatory enforcement Action, (ii) it seeks injunctive or equitable relief, (iii) the Indemnified Party shall have reasonably concluded that there exists an actual or potential conflict of interest between the Indemnifying Party and the Indemnified Party in connection with the defense of the Third Party Claim, (iv) settlement of, an adverse judgment with respect to, or the conduct of the defense of the Third Party Claim by the Indemnifying Party is, in the good faith judgment of the Indemnified Party, likely to be adverse to, the Indemnified Partyprevailing party’s reputation or continuing business interests (including its relationships with current or potential customers, suppliers or other parties material to the conduct of its business), (v) at any point the Indemnifying Party fails to conduct the defense of the Third Party Claim actively and diligently or (vi) such Third Party Claim is primarily related to Taxes. The Indemnified Party shall be entitled but not obligated to participate in any such defense and to employ separate counsel of its choosing for such purpose; provided, that the fees reasonable costs and expenses shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this Section 8.4 unless the Indemnifying Party fails to conduct the defense of the Third Party Claim actively and diligently. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall not consent to the entry of any judgment or enter into any compromise or settlement with respect to such claims without the prior written consent of the Indemnified Party (which consent shall not be unreasonably conditioned, withheld or delayed), unless such judgment, settlement, compromise or offer to settle, compromise or cease to defend such Third Party Claim (i) provides for the payment by the Indemnifying Party of money as sole relief for the claimant, (ii) results in the full and general release of all Indemnified Parties from all liabilities arising or relating to, or in connection with, the Third Party Claim, and (iii) involves no finding or admission of any violation of Law or the rights of any Person and no effect on any other claims that may be made against the Indemnified Party or any of its Affiliates or NewCo or and of its Subsidiaries.
(B) If the Indemnifying Party does not duly and timely make such election, or otherwise at any time fails to conduct the defense of the Third Party Claim actively and diligently, the Indemnified Party shall be entitled but not obligated (subject to Section 8.6) to notify the Indemnifying Party of its election to assume and control such defense from the Indemnifying Party, whereupon the Indemnified Party and not the Indemnifying Party shall have the powers described in the first sentence of Section 8.4(b)(ii)(A); provided that the Indemnified Party’s right to be indemnified, defended, held harmless and reimbursed in respect of the Third Party Claim shall not otherwise be affected by such election; provided, further, that the Indemnified Party may not settle any such matter without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed) if the Indemnified Party is seeking or shall seek indemnification hereunder with respect to such matter, unless the Indemnified Party assumed control of the defense of the Third Party Claim because the Indemnifying Party failed to conduct such defense actively and diligently. In the event that the Indemnified Person conducts the defense of the Third Party Claim pursuant to this Section 8.4(b)(ii)(B), the Indemnifying Party will (i) advance the Indemnified Person promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys’ fees fees) incurred in connection with such Action.
(d) Following the final determination of any amounts owed to a Parent Indemnified Party in accordance with the terms of this Article VIII, and expensessubject to terms and conditions of this Article VIII, (i) from the Escrow Fund pursuant to the terms of this Article VIII, Parent and the Securityholder Representative Committee shall jointly instruct the Escrow Agent to promptly disburse such amounts from the Escrow Fund to such Indemnified Party in accordance with the Escrow Agreement, or (ii) remain responsible for directly from any and all other Losses that the Indemnified Person may incur or suffer resulting from, arising out of, relating to, in the nature of or caused by the Third Company Securityholder Indemnifying Party Claim pursuant to the fullest extent provided in this Article VIII. Except as expressly contemplated by this Section 8.4(b)(ii)(B), the such Company Securityholder Indemnifying Party shall have no liability promptly (and in any event with respect three (3) Business Days) following such determination pay such amounts to such Parent Indemnified Party. Following the final determination of any amounts owed to a Third Party Claim settled without its prior written consent.
(iii) The Company Securityholder Indemnified Party and the from any Parent Indemnifying Party pursuant to this Article VIII, such Parent Indemnifying Party shall cooperate promptly (and in order any event with three (3) Business Days) following such determination pay such amounts to ensure the proper and adequate investigation and defense of all Third Party Claims, including by providing reasonable access to each other’s relevant business records, documents and employees, for purposes of investigation, document production, testimony and otherwise. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third Party Claims. The Person controlling the defense of a Third Party Claim shall in good faith allow the Indemnifying Party or such Company Securityholder Indemnified Party, as the case may be, to make comments to the materials filed or submitted in such defense, and shall consider such comments in good faith.
Appears in 1 contract
Claim Procedures. If a Person is entitled to indemnification under this Article VII (a) In order for an Investor Indemnified Party or an AT&T Indemnified Party (any of them, an the “Indemnified Party”) to duly ), such party may make a valid claim under Section 8.2 or Section 8.3, the Indemnified Party must (promptly, but in no event more than 20 Business Days, following the first date following the Closing Date on which such Indemnified Party has knowledge of facts, matters or circumstances from which it is reasonably apparent that such an occurrence is likely to have occurred; provided, that no failure to give notice of such claim prior to the expiration of such 20 Business Day period will relieve such Indemnifying Party from any obligation under this Article VIII, except VII (a “Claim”) by delivering to the extent such failure actually and materially prejudices such Indemnifying Party) party required to provide written notice to AT&T indemnification hereunder (for claims made by Investor Indemnified Parties) or to Investor (for claims made by AT&T Indemnified Parties) (the recipient of such notice, the “Indemnifying Party”) written notice of such claim (the “Claims Notice”). The Claims Notice shall state the nature and basis of such Claim or action, which notice to the extent known, and the amount in dispute under such claim or action, if known at such time. The Indemnifying Party shall set forth a description in reasonable detail of the occurrence(s) specified in Section 8.2 or Section 8.3 which respond to the Indemnified Party alleges (a “Claim Response”) within thirty (30) days (the “Response Period”) after the date that the Claims Notice is received by the Indemnifying Party. If the Indemnifying Party fails to have occurredgive a Claim Response within the Response Period, the Indemnifying Party will be deemed not to dispute the Claim described in the related Claims Notice. If the Indemnifying Party elects not to dispute a reasonable description of the facts and circumstances giving rise Claim described in a Claims Notice, whether by failing to such occurrences in light of the facts and circumstances then known give a timely Claim Response or by written notice to the Indemnified Party, then the estimated amount of Losses actually incurred or suffered as the result thereof (to the extent then ascertainable), and a description of any other remedy sought in connection therewith, any relevant time constraints relating thereto andDamages, to the extent practicableknown at the time, any other material details pertaining thereto (a “Claim Notice”); provided, that no defect in the information contained set forth in such Claim Claims Notice from will be conclusively deemed to be an obligation of the Indemnified Party to any Indemnifying Party will relieve such Indemnifying Party from any obligation under this Article VIII except to the extent such defect actually and materially prejudices such Indemnifying Party. The Indemnified Party shall cooperate with , and provide to the Indemnifying Party such information under shall pay within thirty (30) days after the Indemnified Party’s control as last day of the applicable Response Period the amount of Damages due pursuant to this Article VII. If the Indemnifying Party may reasonably request for delivers a Claim Response not relating to a Third-Party Claim within the purposes of determining the validity Response Period indicating that it disputes one or more of the allegations made matters identified in the Claim Notice and shall keep Claims Notice, the Indemnifying Party reasonably and promptly informed of factual and procedural developments (including additional information which may come under the Indemnified Party’s control) in connection therewith. The Indemnifying Party and the Indemnified Party shall use reasonable best efforts promptly meet and act in good faith to avoid production of confidential information (consistent with applicable Law) settle the dispute before otherwise seeking to third parties and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work product privileges.
(b) In the event the Claim Notice results from any Action asserted or threatened against, the Indemnified Party by a third party (other than a Tax Claim) (a “Third Party Claim”):
(i) The Indemnified Party shall provide the Claim Notice to the Indemnifying Party no later than the 20th Business Day following the Indemnified Party’s receipt of the Third Party Claim, and in any event no later than the 20th Business Day preceding the date by which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding; provided that if either such Business Day occurs on or prior to the Closing Date, the Claim Notice shall be timely provided if it is provided no later than the Business Day following the Closing Date; provided, that no failure by the Indemnified Party to give such Claim Notice during such 20 Business Day period will relieve the Indemnifying Party from any obligation enforce their respective rights under this Article VIIIVII. Any obligation of a Harbinger Party to indemnify the Company Indemnified Parties pursuant to Section 7.2 shall be payable in shares of Company Common Stock or, except to at the extent sole option of such failure actually and materially prejudices Harbinger Party, cash. For purposes of making any such Indemnifying Party.
indemnification payments hereunder, each share of Company Common Stock shall be valued at the volume weighted average price (iicomputed using Bloomberg) During of a share of Company Common Stock for the 30-trading day period ending on the earlier of the 15th calendar day following the Indemnifying Party’s receipt of the Claim Notice and the fifth calendar day date preceding the date on which an appearance such payment is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, the Indemnifying Party shall be entitled to notify the Indemnified Party of its election to assume and control the defense of the Third Party Claim, stating that the Indemnifying Party will, and thereby covenants to, indemnify, defend and hold harmless the Indemnified Party from and against the entirety of any and all Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claimmade.
(A) In the event that the Indemnifying Party duly and timely makes such election, the Indemnifying Party shall defend the Indemnified Party by appropriate proceedings and shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense and the settlement, arbitration, litigation and appellate strategy relating to the Third Party Claim; provided, however, that no Indemnifying Party shall have the right to assume control of the defense of such Third Party Claim if: (i) it relates to or otherwise arises in connection with any criminal or regulatory enforcement Action, (ii) it seeks injunctive or equitable relief, (iii) the Indemnified Party shall have reasonably concluded that there exists an actual or potential conflict of interest between the Indemnifying Party and the Indemnified Party in connection with the defense of the Third Party Claim, (iv) settlement of, an adverse judgment with respect to, or the conduct of the defense of the Third Party Claim by the Indemnifying Party is, in the good faith judgment of the Indemnified Party, likely to be adverse to, the Indemnified Party’s reputation or continuing business interests (including its relationships with current or potential customers, suppliers or other parties material to the conduct of its business), (v) at any point the Indemnifying Party fails to conduct the defense of the Third Party Claim actively and diligently or (vi) such Third Party Claim is primarily related to Taxes. The Indemnified Party shall be entitled but not obligated to participate in any such defense and to employ separate counsel of its choosing for such purpose; provided, that the fees and expenses shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this Section 8.4 unless the Indemnifying Party fails to conduct the defense of the Third Party Claim actively and diligently. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall not consent to the entry of any judgment or enter into any compromise or settlement with respect to such claims without the prior written consent of the Indemnified Party (which consent shall not be unreasonably conditioned, withheld or delayed), unless such judgment, settlement, compromise or offer to settle, compromise or cease to defend such Third Party Claim (i) provides for the payment by the Indemnifying Party of money as sole relief for the claimant, (ii) results in the full and general release of all Indemnified Parties from all liabilities arising or relating to, or in connection with, the Third Party Claim, and (iii) involves no finding or admission of any violation of Law or the rights of any Person and no effect on any other claims that may be made against the Indemnified Party or any of its Affiliates or NewCo or and of its Subsidiaries.
(B) If the Indemnifying Party does not duly and timely make such election, or otherwise at any time fails to conduct the defense of the Third Party Claim actively and diligently, the Indemnified Party shall be entitled but not obligated (subject to Section 8.6) to notify the Indemnifying Party of its election to assume and control such defense from the Indemnifying Party, whereupon the Indemnified Party and not the Indemnifying Party shall have the powers described in the first sentence of Section 8.4(b)(ii)(A); provided that the Indemnified Party’s right to be indemnified, defended, held harmless and reimbursed in respect of the Third Party Claim shall not otherwise be affected by such election; provided, further, that the Indemnified Party may not settle any such matter without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed) if the Indemnified Party is seeking or shall seek indemnification hereunder with respect to such matter, unless the Indemnified Party assumed control of the defense of the Third Party Claim because the Indemnifying Party failed to conduct such defense actively and diligently. In the event that the Indemnified Person conducts the defense of the Third Party Claim pursuant to this Section 8.4(b)(ii)(B), the Indemnifying Party will (i) advance the Indemnified Person promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses) and (ii) remain responsible for any and all other Losses that the Indemnified Person may incur or suffer resulting from, arising out of, relating to, in the nature of or caused by the Third Party Claim to the fullest extent provided in this Article VIII. Except as expressly contemplated by this Section 8.4(b)(ii)(B), the Indemnifying Party shall have no liability with respect to a Third Party Claim settled without its prior written consent.
(iii) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate investigation and defense of all Third Party Claims, including by providing reasonable access to each other’s relevant business records, documents and employees, for purposes of investigation, document production, testimony and otherwise. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third Party Claims. The Person controlling the defense of a Third Party Claim shall in good faith allow the Indemnifying Party or Indemnified Party, as the case may be, to make comments to the materials filed or submitted in such defense, and shall consider such comments in good faith.
Appears in 1 contract
Sources: Contribution and Exchange Agreement (Harbinger Group Inc.)
Claim Procedures. If a Person is entitled to indemnification under this Article V (a) In order for an Investor Indemnified Party or an AT&T Indemnified Party (any of them, an the “Indemnified Party”) to duly ), such party may make a valid claim under Section 8.2 or Section 8.3, the Indemnified Party must (promptly, but in no event more than 20 Business Days, following the first date following the Closing Date on which such Indemnified Party has knowledge of facts, matters or circumstances from which it is reasonably apparent that such an occurrence is likely to have occurred; provided, that no failure to give notice of such claim prior to the expiration of such 20 Business Day period will relieve such Indemnifying Party from any obligation under this Article VIII, except V (a “Claim”) by delivering to the extent such failure actually and materially prejudices such Indemnifying Party) party required to provide written notice to AT&T indemnification hereunder (for claims made by Investor Indemnified Parties) or to Investor (for claims made by AT&T Indemnified Parties) (the recipient of such notice, the “Indemnifying Party”) written notice of such claim (the “Claims Notice”). The Claims Notice shall state the nature and basis of such Claim or action, which notice to the extent known, and the amount in dispute under such claim or action, if known at such time. The Indemnifying Party shall set forth a description in reasonable detail of the occurrence(s) specified in Section 8.2 or Section 8.3 which respond to the Indemnified Party alleges (a “Claim Response”) within thirty (30) days (the “Response Period”) after the date that the Claims Notice is received by the Indemnifying Party. If the Indemnifying Party fails to have occurredgive a Claim Response within the Response Period, the Indemnifying Party will be deemed not to dispute the Claim described in the related Claims Notice. If the Indemnifying Party elects not to dispute a reasonable description of the facts and circumstances giving rise Claim described in a Claims Notice, whether by failing to such occurrences in light of the facts and circumstances then known give a timely Claim Response or by written notice to the Indemnified Party, then the estimated amount of Losses actually incurred or suffered as the result thereof (to the extent then ascertainable), and a description of any other remedy sought in connection therewith, any relevant time constraints relating thereto andDamages, to the extent practicableknown at the time, any other material details pertaining thereto (a “Claim Notice”); provided, that no defect in the information contained set forth in such Claim Claims Notice from will be conclusively deemed to be an obligation of the Indemnified Party to any Indemnifying Party will relieve such Indemnifying Party from any obligation under this Article VIII except to the extent such defect actually and materially prejudices such Indemnifying Party. The Indemnified Party shall cooperate with , and provide to the Indemnifying Party such information under shall pay within thirty (30) days after the Indemnified Party’s control as last day of the applicable Response Period the amount of Damages due pursuant to this Article V. If the Indemnifying Party may reasonably request for delivers a Claim Response not relating to a Third-Party Claim within the purposes of determining the validity Response Period indicating that it disputes one or more of the allegations made matters identified in the Claim Notice and shall keep Claims Notice, the Indemnifying Party reasonably and promptly informed of factual and procedural developments (including additional information which may come under the Indemnified Party’s control) in connection therewith. The Indemnifying Party and the Indemnified Party shall use reasonable best efforts promptly meet and act in good faith to avoid production of confidential information (consistent with applicable Law) settle the dispute before otherwise seeking to third parties and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work product privileges.
(b) In the event the Claim Notice results from any Action asserted or threatened against, the Indemnified Party by a third party (other than a Tax Claim) (a “Third Party Claim”):
(i) The Indemnified Party shall provide the Claim Notice to the Indemnifying Party no later than the 20th Business Day following the Indemnified Party’s receipt of the Third Party Claim, and in any event no later than the 20th Business Day preceding the date by which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding; provided that if either such Business Day occurs on or prior to the Closing Date, the Claim Notice shall be timely provided if it is provided no later than the Business Day following the Closing Date; provided, that no failure by the Indemnified Party to give such Claim Notice during such 20 Business Day period will relieve the Indemnifying Party from any obligation enforce their respective rights under this Article VIIIV. Any obligation of Alexander to indemnify Lattice Indemnified Parties pursuant to Section 5.2 shall be payable in shares of Company Common Stock. For purposes of making any such indemnification payments hereunder, except to each share of Company Common Stock shall be valued at the extent such failure actually and materially prejudices such Indemnifying Party.
volume weighted average price (iicomputed using Bloomberg) During of a share of Company Common Stock for the 30-trading day period ending on the earlier of the 15th calendar day following the Indemnifying Party’s receipt of the Claim Notice and the fifth calendar day date preceding the date on which an appearance such payment is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, the Indemnifying Party shall be entitled to notify the Indemnified Party of its election to assume and control the defense of the Third Party Claim, stating that the Indemnifying Party will, and thereby covenants to, indemnify, defend and hold harmless the Indemnified Party from and against the entirety of any and all Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claimmade.
(A) In the event that the Indemnifying Party duly and timely makes such election, the Indemnifying Party shall defend the Indemnified Party by appropriate proceedings and shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense and the settlement, arbitration, litigation and appellate strategy relating to the Third Party Claim; provided, however, that no Indemnifying Party shall have the right to assume control of the defense of such Third Party Claim if: (i) it relates to or otherwise arises in connection with any criminal or regulatory enforcement Action, (ii) it seeks injunctive or equitable relief, (iii) the Indemnified Party shall have reasonably concluded that there exists an actual or potential conflict of interest between the Indemnifying Party and the Indemnified Party in connection with the defense of the Third Party Claim, (iv) settlement of, an adverse judgment with respect to, or the conduct of the defense of the Third Party Claim by the Indemnifying Party is, in the good faith judgment of the Indemnified Party, likely to be adverse to, the Indemnified Party’s reputation or continuing business interests (including its relationships with current or potential customers, suppliers or other parties material to the conduct of its business), (v) at any point the Indemnifying Party fails to conduct the defense of the Third Party Claim actively and diligently or (vi) such Third Party Claim is primarily related to Taxes. The Indemnified Party shall be entitled but not obligated to participate in any such defense and to employ separate counsel of its choosing for such purpose; provided, that the fees and expenses shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this Section 8.4 unless the Indemnifying Party fails to conduct the defense of the Third Party Claim actively and diligently. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall not consent to the entry of any judgment or enter into any compromise or settlement with respect to such claims without the prior written consent of the Indemnified Party (which consent shall not be unreasonably conditioned, withheld or delayed), unless such judgment, settlement, compromise or offer to settle, compromise or cease to defend such Third Party Claim (i) provides for the payment by the Indemnifying Party of money as sole relief for the claimant, (ii) results in the full and general release of all Indemnified Parties from all liabilities arising or relating to, or in connection with, the Third Party Claim, and (iii) involves no finding or admission of any violation of Law or the rights of any Person and no effect on any other claims that may be made against the Indemnified Party or any of its Affiliates or NewCo or and of its Subsidiaries.
(B) If the Indemnifying Party does not duly and timely make such election, or otherwise at any time fails to conduct the defense of the Third Party Claim actively and diligently, the Indemnified Party shall be entitled but not obligated (subject to Section 8.6) to notify the Indemnifying Party of its election to assume and control such defense from the Indemnifying Party, whereupon the Indemnified Party and not the Indemnifying Party shall have the powers described in the first sentence of Section 8.4(b)(ii)(A); provided that the Indemnified Party’s right to be indemnified, defended, held harmless and reimbursed in respect of the Third Party Claim shall not otherwise be affected by such election; provided, further, that the Indemnified Party may not settle any such matter without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed) if the Indemnified Party is seeking or shall seek indemnification hereunder with respect to such matter, unless the Indemnified Party assumed control of the defense of the Third Party Claim because the Indemnifying Party failed to conduct such defense actively and diligently. In the event that the Indemnified Person conducts the defense of the Third Party Claim pursuant to this Section 8.4(b)(ii)(B), the Indemnifying Party will (i) advance the Indemnified Person promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses) and (ii) remain responsible for any and all other Losses that the Indemnified Person may incur or suffer resulting from, arising out of, relating to, in the nature of or caused by the Third Party Claim to the fullest extent provided in this Article VIII. Except as expressly contemplated by this Section 8.4(b)(ii)(B), the Indemnifying Party shall have no liability with respect to a Third Party Claim settled without its prior written consent.
(iii) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate investigation and defense of all Third Party Claims, including by providing reasonable access to each other’s relevant business records, documents and employees, for purposes of investigation, document production, testimony and otherwise. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third Party Claims. The Person controlling the defense of a Third Party Claim shall in good faith allow the Indemnifying Party or Indemnified Party, as the case may be, to make comments to the materials filed or submitted in such defense, and shall consider such comments in good faith.
Appears in 1 contract
Claim Procedures. (a) In order for an Investor a New DK Indemnified Party or an AT&T a SBT Indemnified Party (any of them, an “Indemnified Party”) to duly make a valid claim under Section 8.2 10.2 or Section 8.310.3, the Indemnified Party must (promptly, but (i) with respect to SBT Non-Fundamental Representations, SBT Sellers Non-Fundamental Representations and DK Non-Fundamental Representations, as applicable, in no event more later than 20 Business Days, following the first date that is two (2) years following the Closing Date on which such Indemnified Party has knowledge and (ii) with respect to SBT Fundamental Representations, SBT Sellers Fundamental Representations and DK Fundamental Representations, in no event later than the date of facts, matters or circumstances from which it is reasonably apparent that such an occurrence is likely to have occurred; provided, that no failure to give notice of such claim prior to the expiration of such 20 Business Day period will relieve such Indemnifying Party from any obligation under this Article VIIIthe applicable statute of limitations, except to the extent such failure actually and materially prejudices such Indemnifying Party) provide written notice to AT&T the SBT Sellers’ Representative (for claims made by Investor New DK Indemnified Parties) or to Investor New DK (for claims made by AT&T SBT Sellers Indemnified Parties) (the recipient of such notice, the “Indemnifying Party”), which notice shall set forth a description in reasonable detail of the occurrence(s) specified in Section 8.2 10.2 or Section 8.3 10.3 which the Indemnified Party alleges to have occurred, a reasonable description of the facts and circumstances giving rise to such occurrences in light of the facts and circumstances then known to the Indemnified Partyoccurrences, the estimated amount of Losses actually incurred imposed, incurred, suffered or suffered as the result thereof asserted in connection therewith or arising therefrom (to the extent then ascertainable), and a description of any other remedy sought in connection therewiththerewith (subject to the limitations in this Agreement), any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, that no defect in the information contained in such Claim Notice from the Indemnified Party to any Indemnifying Party will relieve such Indemnifying Party from any obligation under this Article VIII except to the extent such defect actually and materially prejudices such Indemnifying Party. The Indemnified Party shall cooperate with and provide to the Indemnifying Party such information under the Indemnified Party’s control as the Indemnifying Party may reasonably request for the purposes of determining the validity of the allegations made in the Claim Notice and shall keep the Indemnifying Party reasonably and promptly informed of factual and procedural developments (including additional information which may come under the Indemnified Party’s control) in connection therewith. The Indemnifying Party and the Indemnified Party shall use reasonable best efforts to avoid production of confidential information (consistent with applicable Law) to third parties and to cause all communications among employees, counsel and others representing any party to a Third Party Claim (as defined below) to be made so as to preserve any applicable attorney-client or work product privileges.
(b) In the event the Claim Notice results from any Action asserted or threatened against, the Indemnified Party by a third party (other than a Tax Claimwith respect to Taxes, which in the event of Sellers Taxes or claims relating to Taxes against the applicable SBT Security Holders, shall be controlled in accordance with the provisions of Section 13.5) (a “Third Party Claim”):
(i) The Indemnified Party shall provide the Claim Notice to the Indemnifying Party no not later than the 20th tenth Business Day following the Indemnified Party’s receipt of the Third Party Claim, and in any event no not later than the 20th tenth Business Day preceding the date by which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding; provided that if either such Business Day occurs on or prior the failure to the Closing Date, the timely provide a Claim Notice shall be timely provided if it is provided no later than the Business Day following the Closing Date; provided, that no failure by the Indemnified Party to give such Claim Notice during such 20 Business Day period will not relieve the Indemnifying Party from any obligation under this Article VIII, of its obligations hereunder except to the extent that such failure actually and materially prejudices has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Indemnifying PartyThird Party Claim.
(ii) During the period ending on the earlier of the 15th 30th calendar day following the Indemnifying Party’s receipt of the Claim Notice and the fifth calendar day preceding the date on which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, the Indemnifying Party shall be entitled to notify the Indemnified Party of his or its election to assume and control the defense of the Third Party Claim, stating that unless (i) the Indemnifying Third Party will, and thereby covenants to, indemnify, defend and hold harmless Claim seeks an injunction or other equitable or non-monetary relief against the Indemnified Party from and against (other than injunctive, equitable or non-monetary relief that is incidental to monetary damages as the entirety of primary relief sought), (ii) the Third Party Claim arises in connection with any and all criminal matter, (iii) the Losses sought in connection with such Third Party Claim(s) are reasonably likely to exceed the Cap, or (iv) there is a reasonable probability that the Third Party Claim may adversely affect the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claimits Affiliates other than as a result of monetary damages.
(A) A. In the event that the Indemnifying Party duly and timely makes such election, such election shall constitute the Indemnifying Party’s conclusive acknowledgment that the Indemnified Party is entitled to be indemnified, defended, held harmless and reimbursed in accordance with this Article X (subject to the limitations herein) for, from and against the Third Party Claim, the Indemnifying Party shall defend the Indemnified Party by appropriate proceedings and shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense and the settlement, arbitration, litigation and appellate strategy relating to the Third Party Claim; provided, however, that no Indemnifying Party shall have the right to assume control of the defense of such Third Party Claim if: (i) it relates to or otherwise arises in connection with any criminal or regulatory enforcement Action, (ii) it seeks injunctive or equitable relief, (iii) the Indemnified Party shall have reasonably concluded that there exists an actual or potential conflict of interest between the Indemnifying Party and the Indemnified Party in connection with the defense of the Third Party Claim, (iv) settlement of, an adverse judgment with respect to, or the conduct of the defense of the Third Party Claim by the Indemnifying Party is, in the good faith judgment of the Indemnified Party, likely to be adverse to, the Indemnified Party’s reputation or continuing business interests (including its relationships with current or potential customers, suppliers or other parties material to the conduct of its business), (v) at any point the Indemnifying Party fails to conduct the defense of the Third Party Claim actively and diligently or (vi) such Third Party Claim is primarily related to Taxes. The Indemnified Party shall be entitled but not obligated to participate in any such defense and to employ separate counsel of its choosing for such purposepurpose on its account; provided that, if in the reasonable opinion of counsel to the Indemnified Party, there are defenses available to the Indemnified Party that are different from or in addition to those available to the Indemnifying Party, then the reasonable fees and expenses of one external law firm to the Indemnified Party shall be paid in accordance with Section 10.4(b)(iv)A; provided, that the fees and expenses shall be borne by further, that, if (i) the Indemnified Party and shall not be recoverable from such Indemnifying Party under this Section 8.4 unless are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential conflicts between them or (ii) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party fails has failed to conduct the defense of the pursue a Third Party Claim actively it has assumed in a reasonably diligent manner, as provided in the first sentence of this Section 10.4(b)(ii)A, the Indemnifying Party shall bear the reasonable and diligentlydocumented out-of-pocket costs and expenses of one additional counsel (in addition to, but only to the extent necessary, one local counsel) which shall represent all Indemnified Party arising out of the same or similar set of circumstances in connection with such defense. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall not consent be entitled to settle such claims; provided that, the entry of any judgment or enter into any compromise or settlement with respect to such claims Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably conditionedwithheld, withheld conditioned or delayed), unless such judgment, settlementsettle, compromise or offer to settle, compromise or cease to defend such Third Party Claim if such settlement, compromise or cessation would result in (i) provides for any monetary liability of the payment Indemnified Party that will not be promptly paid or reimbursed by the Indemnifying Party of money as sole relief for the claimant, Party; (ii) results in the full and general release imposition of all a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Parties from all liabilities arising Party or relating to, or in connection with, the Third Party Claim, and any of its Affiliates; (iii) involves no a finding or admission of any a violation of Law or violation of the rights of any Person and no by the Indemnified Party or any of its Affiliates; (iv) a finding or admission that would have an adverse effect on any other claims that may be made or threatened against the Indemnified Party or any of its Affiliates which are not indemnifiable hereunder; or NewCo (v) any non-monetary condition or and obligation being imposed on any Indemnified Party or any of its SubsidiariesAffiliates.
(B) B. If the Indemnifying Party (i) does not duly and timely make such election, or otherwise at any time (ii) after timely making such election, fails to conduct the defense of take reasonable steps to defend diligently the Third Party Claim actively and diligentlywithin ten (10) Business Days after its receipt of written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall be entitled but not obligated (subject to Section 8.610.7 (Minimizing and Mitigating Losses)) to notify the Indemnifying Party of its election to assume and control such defense from the Indemnifying Party, whereupon the Indemnified Party and not the Indemnifying Party shall have the powers described in the first sentence of Section 8.4(b)(ii)(A)10.4(b)(ii)A; provided that the Indemnified Party’s right to be indemnified, defended, held harmless and reimbursed in respect of the Third Party Claim shall not otherwise be affected by such election; provided, further, that the Indemnified Party may not settle any such matter without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed) if the Indemnified Party is seeking or shall seek indemnification hereunder with respect to such matter, unless the Indemnified Party assumed control of the defense of the Third Party Claim because the Indemnifying Party failed to conduct such defense actively and diligently. In the event that the Indemnified Person conducts the defense of the Third Party Claim pursuant to this Section 8.4(b)(ii)(B), the Indemnifying Party will (i) advance the Indemnified Person promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses) and (ii) remain responsible for any and all other Losses that the Indemnified Person may incur or suffer resulting from, arising out of, relating to, Notwithstanding anything in the nature of or caused by the Third Party Claim foregoing to the fullest extent provided in this Article VIII. Except as expressly contemplated by this Section 8.4(b)(ii)(B)contrary, the Indemnifying Party shall have no liability with respect to a Third Party Claim settled without its prior written consentconsent (which shall not unreasonably be withheld, conditioned or delayed).
(iii) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate investigation and defense of all Third Party Claims, including by providing reasonable access to each other’s relevant business records, documents and employees, for purposes of investigation, document production, testimony and otherwise. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third Party Claims. The Person controlling the defense of a Third Party Claim shall in good faith allow the Indemnifying Party or Indemnified Party, as the case may be, to make comments to the materials filed or submitted in such defense, and shall consider such comments in good faith.
(iv) All reasonable and documented out-of-pocket legal fees, costs and expenses actually incurred or suffered by the Indemnifying Party and the Indemnified Party in connection with investigating and defending, and cooperating in the investigation and defense of, the Third Party Claim (“Third Party Claim Expenses”) shall be paid as follows:
A. Any Third Party Claim Expenses actually incurred or suffered by the Indemnified Party (1) prior to or in the absence of the due and timely making of the election described in Section 10.4(b)(ii)A, (2) under the circumstances described in the proviso to the second sentence of such Section, (3) under the circumstances described in Section 10.4(b)(ii)B or (4) in compliance with Section 10.4(b)(iii) shall constitute Losses for which the Indemnified Party shall be entitled to be reimbursed if the Indemnified Party is determined pursuant to a Final Determination to be entitled to be indemnified, held harmless and reimbursed pursuant to this Article X in respect of the Third Party Claim.
B. Third Party Claim Expenses not addressed by Section 10.4(b)(iv)A shall be paid by the Person by which they were incurred.
Appears in 1 contract
Sources: Business Combination Agreement (Diamond Eagle Acquisition Corp. \ DE)
Claim Procedures. (a) In order for Subject to the limitations set forth in Section 8.3, if an Investor Indemnified Party or an AT&T wishes to make a claim under this Article VIII, such Indemnified Party shall deliver a written notice (any of them, an a “Indemnified PartyClaim Notice”) to duly make a valid claim under Section 8.2 or Section 8.3, the Indemnified Party must Securityholder Representative (promptly, but in no event more than 20 Business Days, following the first date following the Closing Date on which such i) stating that an Indemnified Party has knowledge paid, incurred, suffered or sustained, or reasonably anticipates that it may pay, incur, suffer or sustain Losses, and (ii) to the extent reasonably available, specifying such Losses in reasonable detail, the date that each such Loss was paid, incurred, suffered or sustained, or the basis for such anticipated Losses, and, if applicable, the nature of factsthe misrepresentation, matters breach of warranty or covenant or other indemnifiable matter. Acquiror may update a Claim Notice from time to time to reflect any change in circumstances from which it is reasonably apparent that such an occurrence is likely to have occurredfollowing the date thereof; provided, however, that no failure Acquiror may not add new claims to give notice of such Claim Notice if the applicable survival period for such claim has expired unless such new claim arises from the same set of facts or circumstances raised in such Claim Notice served prior to the expiration of such 20 Business Day period survival period. A failure by an Indemnified Party to give complete, accurate, or, subject to the survival periods set forth in Section 8.1, timely notice of a Claim Notice will relieve such Indemnifying Party from not affect the rights or obligations of any obligation party hereunder. If a claim under this Article VIIIVIII may be brought under different or multiple sections, except clauses or sub-clauses of Section 8.2(a) (or with respect to different or multiple representations, warrants or covenants), then the Indemnified Parties shall have the right to bring such claim under any or each such section, clause, subclauses, representation, warranty or covenant (each a “Subject Provision”) that it chooses and the Indemnified Parties will not be precluded from seeking indemnification under any Subject Provision by virtue of the Indemnified Parties not being entitled to seek indemnification under any other Subject Provision. Following the delivery of a Claim Notice, the Securityholder Representative and its representatives and agents shall be given reasonable access (including electronic access, to the extent available) to the books and records of the Surviving Corporation solely to the extent such failure actually books and materially prejudices records are relevant to the matters or inquiries raised in such Claim Notice and reasonable access during normal business hours to such personnel or other representatives of the Surviving Corporation and Acquiror solely to the extent such personnel or other representatives are reasonably expected to have knowledge relevant to the matters or inquiries raised in such Claim Notice, in each case, as they may reasonably require for the purposes of investigating or resolving any disputes relating to, or responding to, any matters or inquiries raised in such Claim Notice; provided, however, the Securityholder Representative shall only be entitled to such access (x) to the extent that such access does not affect any legal privilege relating to the Surviving Corporation, Acquiror, or any other Indemnified Party, (y) to the extent such access does not conflict with any applicable Law, and (z) after the Securityholder Representative executes Acquiror’s standard non-disclosure agreement. -62-
(b) If the Securityholder Representative on behalf of the Indemnifying PartyParties shall not object in writing within thirty (30) provide days of delivery of a Claim Notice by delivery of a written notice to AT&T (for claims made by Investor Indemnified Parties) or to Investor (for claims made by AT&T Indemnified Parties) (the recipient of such notice, the “Indemnifying Party”), which notice shall set forth objection containing a description in reasonable detail of the occurrence(s) specified in Section 8.2 or Section 8.3 which the Indemnified Party alleges to have occurred, a reasonable reasonably detailed description of the facts and circumstances giving rise to such occurrences in light of the facts and circumstances then known supporting an objection to the Indemnified Party, the estimated amount of Losses actually incurred or suffered as the result thereof (to the extent then ascertainable), and a description of any other remedy sought in connection therewith, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto applicable claim (a “Claim Objection Notice”); provided, such failure to so object shall be an irrevocable acknowledgment by the Securityholder Representative on behalf of the Indemnifying Parties that no defect in the information contained Indemnified Party is entitled to the full amount of the claim for Losses set forth in such Claim Notice from the Indemnified Party to any Indemnifying Party will relieve (an “Unobjected Claim”). In such Indemnifying Party from any obligation under this Article VIII except to the extent such defect actually and materially prejudices such Indemnifying Party. The Indemnified Party shall cooperate with and provide to the Indemnifying Party such information under the Indemnified Party’s control as the Indemnifying Party may reasonably request for the purposes of determining the validity of the allegations made in the Claim Notice and shall keep the Indemnifying Party reasonably and promptly informed of factual and procedural developments (including additional information which may come under the Indemnified Party’s control) in connection therewith. The Indemnifying Party event, Acquiror and the Indemnified Party shall use reasonable best efforts to avoid production of confidential information Securityholder Representative shall, as promptly as practicable thereafter (consistent with applicable Law) to third parties and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work product privileges.
(b) In the event the Claim Notice results from any Action asserted or threatened against, the Indemnified Party by a third party (other than a Tax Claim) (a “Third Party Claim”):
(i) The Indemnified Party shall provide the Claim Notice to the Indemnifying Party no later than the 20th Business Day following the Indemnified Party’s receipt of the Third Party Claim, and in any event no later than the 20th within two (2) Business Day preceding the date by which an appearance is required to be made before Days thereafter), deliver a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding; provided that if either such Business Day occurs on or prior joint written instruction to the Closing DateEscrow Agent to release to Acquiror from the Indemnity Escrow Fund an amount of cash equal to the amount of Losses set forth in the Unobjected Claim. Should the amount then-remaining in the Indemnity Escrow Fund, if any, be insufficient to satisfy in whole the Claim Notice shall be timely provided if it is provided no later than full amount of the Business Day following the Closing Date; providedUnobjected Claim, that no failure by the Indemnified Party then, subject to give such Claim Notice during such 20 Business Day period will relieve the Indemnifying Party from any obligation under applicable limitations set forth in this Article VIII, except to each Indemnifying Party shall, within thirty (30) days following the extent date of such failure actually and materially prejudices to so object, pay to Acquiror in cash such Indemnifying Party’s Pro Rata Portion of such shortfall.
(ii) During the period ending on the earlier of the 15th calendar day following the Indemnifying Party’s receipt of the Claim Notice and the fifth calendar day preceding the date on which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, the Indemnifying Party shall be entitled to notify the Indemnified Party of its election to assume and control the defense of the Third Party Claim, stating that the Indemnifying Party will, and thereby covenants to, indemnify, defend and hold harmless the Indemnified Party from and against the entirety of any and all Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim.
(Ac) In the event that the Indemnifying Party duly and timely makes such electionSecurityholder Representative shall deliver a Claim Objection Notice in accordance with Section 8.4(b), the Indemnifying Party Securityholder Representative and Acquiror shall defend attempt in good faith to agree upon the Indemnified Party by appropriate proceedings and shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense and the settlement, arbitration, litigation and appellate strategy relating to the Third Party Claim; provided, however, that no Indemnifying Party shall have the right to assume control rights of the defense respective parties with respect to each of such Third Party Claim if: (i) it relates to or otherwise arises in connection with any criminal or regulatory enforcement Action, (ii) it seeks injunctive or equitable relief, (iii) the Indemnified Party shall have reasonably concluded that there exists an actual or potential conflict of interest between the Indemnifying Party and the Indemnified Party in connection with the defense of the Third Party Claim, (iv) settlement of, an adverse judgment with respect to, or the conduct of the defense of the Third Party Claim by the Indemnifying Party is, in the good faith judgment of the Indemnified Party, likely to be adverse to, the Indemnified Party’s reputation or continuing business interests (including its relationships with current or potential customers, suppliers or other parties material to the conduct of its business), (v) at any point the Indemnifying Party fails to conduct the defense of the Third Party Claim actively and diligently or (vi) such Third Party Claim is primarily related to Taxes. The Indemnified Party shall be entitled but not obligated to participate in any such defense and to employ separate counsel of its choosing for such purpose; provided, that the fees and expenses shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this Section 8.4 unless the Indemnifying Party fails to conduct the defense of the Third Party Claim actively and diligentlyclaims. If the Indemnifying Party Securityholder Representative and Acquiror should so agree, a memorandum setting forth such agreement shall control be prepared and signed by both parties (a “Resolution Memorandum”). In such event, Acquiror and the defense of Securityholder Representative shall, as promptly as practicable thereafter (and in any such claimevent within two (2) Business Days thereafter), the Indemnifying Party shall not consent deliver a joint written instruction to the entry Escrow Agent to release to Acquiror from the Indemnity Escrow Fund an amount of any judgment or enter into any compromise or settlement with respect cash equal to such claims without the prior written consent amount of the Indemnified Party (which consent shall not be unreasonably conditioned, withheld or delayed), unless such judgment, settlement, compromise or offer to settle, compromise or cease to defend such Third Party Claim (i) provides for the payment by the Indemnifying Party of money as sole relief for the claimant, (ii) results Losses set forth in the Resolution Memorandum . Should the amount then-remaining in the Indemnity Escrow Fund, if any, be insufficient to satisfy in whole the full and general release of all Indemnified Parties from all liabilities arising or relating toamount set forth in such Resolution Memorandum, or in connection withthen, the Third Party Claim, and (iii) involves no finding or admission of any violation of Law or the rights of any Person and no effect on any other claims that may be made against the Indemnified Party or any of its Affiliates or NewCo or and of its Subsidiaries.
(B) If the Indemnifying Party does not duly and timely make such election, or otherwise at any time fails to conduct the defense of the Third Party Claim actively and diligently, the Indemnified Party shall be entitled but not obligated (subject to Section 8.6) to notify the Indemnifying Party of its election to assume and control such defense from the Indemnifying Party, whereupon the Indemnified Party and not the Indemnifying Party shall have the powers described in the first sentence of Section 8.4(b)(ii)(A); provided that the Indemnified Party’s right to be indemnified, defended, held harmless and reimbursed in respect of the Third Party Claim shall not otherwise be affected by such election; provided, further, that the Indemnified Party may not settle any such matter without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed) if the Indemnified Party is seeking or shall seek indemnification hereunder with respect to such matter, unless the Indemnified Party assumed control of the defense of the Third Party Claim because the Indemnifying Party failed to conduct such defense actively and diligently. In the event that the Indemnified Person conducts the defense of the Third Party Claim pursuant to this Section 8.4(b)(ii)(B), the Indemnifying Party will (i) advance the Indemnified Person promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses) and (ii) remain responsible for any and all other Losses that the Indemnified Person may incur or suffer resulting from, arising out of, relating to, in the nature of or caused by the Third Party Claim to the fullest extent provided applicable limitations set forth in this Article VIII. Except as expressly contemplated by this Section 8.4(b)(ii)(B), the each Indemnifying Party shall have no liability with respect shall, within thirty (30) days following the date of such failure to a Third Party Claim settled without its prior written consentso object, pay to Acquiror in cash such Indemnifying Party’s Pro Rata Portion of such shortfall.
(iii) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate investigation and defense of all Third Party Claims, including by providing reasonable access to each other’s relevant business records, documents and employees, for purposes of investigation, document production, testimony and otherwise. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third Party Claims. The Person controlling the defense of a Third Party Claim shall in good faith allow the Indemnifying Party or Indemnified Party, as the case may be, to make comments to the materials filed or submitted in such defense, and shall consider such comments in good faith.
Appears in 1 contract
Sources: Merger Agreement (Pluralsight, Inc.)