Claims by Third Parties. Other than in the case of any Contest, which shall be governed by Section 9.7 of this Agreement, if a party to this Agreement seeks indemnity hereunder with respect to a claim by a third party: (a) For the purposes of this Section 9.4, “Third Party Claim” means any demand which has been made on, or communicated to the Purchaser, the Shareholders or the Company by or on behalf of any Person other than the entities aforementioned in this Section 9.4(a) and which, if maintained or enforced, may result in a claim for indemnification of the nature described in Section 9.2 or 9.3 of this Agreement being made. (b) Promptly upon receipt by Indemnitee of notice of any Third Party Claim in respect of which the Indemnitee proposes to demand indemnification from the Indemnitor, the Indemnitee shall forthwith give notice to that effect to the Indemnitor. (c) The Indemnitor shall have the right, exercisable by giving notice to the Indemnitee not later than 30 days after receipt of the notice described in Section 9.2 (c) or 9.3(c), as the case may be, to assume the control of the defense, compromise or settlement of the Third Party Claim. (d) Upon the assumption of control by the Indemnitor as aforesaid, the Indemnitor shall, at its expense, diligently proceed with the defense, compromise or settlement of the Third Party Claim at the Indemnitor’s sole expense, including employment of counsel reasonably satisfactory to the Indemnitee, and in connection therewith, the Indemnitee shall cooperate fully, but at the expense of the Indemnitor, to make available to the Indemnitor all pertinent information and witnesses under Indernnitee’s control and to make such assignments and take such other steps as in the opinion of counsel for the Indemnitor are necessary to enable the Indemnitor to conduct such defense, provided always that the Indemnitee shall be entitled to reasonable security from the Indemnitor for any expense, costs or other liabilities to which it may be or may become exposed by reason of such cooperation. (e) The final determination of any such Third Party Claim, including all related costs and expenses, will be binding and conclusive upon the parties hereto as to the validity or invalidity, as the case may be, of such Third Party Claim against the Indemnitor hereunder. (f) Should the Indemnitor fail to give notice to the Indemnitee as provided in clause (c) hereof or in the event the Indemnitor declines to undertake the defense of any Third Party Claim, action or proceeding when first notified thereof, the Indemnitee shall keep the Indemnitor advised as to the current status and progress thereof. The Indemnitee agrees not to make any offer of settlement without first having provided five (5) days advance written notice thereof to the Indemnitor. (g) In the event the Indemnitor undertakes the defense of any such claim, action or proceeding, the Indemnitee shall nevertheless be entitled to participate in (but not direct) the defense thereof with counsel of its own choice and at its own expense, and the parties agree to cooperate fully with one another in connection with the defense and/or settlement thereof; provided, however, that any decision to settle any such claim, action or proceeding shall be at the Indemnitor’s sole discretion. The foregoing notwithstanding, except with the prior written consent of the Indemnitee, which shall not be unreasonably withheld, no Indemnitor, in the defense of any such claim or litigation, shall consent to entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnitee or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee of a release from all liability with respect to such claim or litigation. From and after delivery of the notice referred to in Section 9.4(c) above, the Indemnitor shall be relieved of the obligation to reimburse the Indemnitee for any other legal, accounting or other out-of-pocket costs and expenses thereafter incurred by the Indemnitee with respect to the defense of such claim, action or proceeding notwithstanding any participation by the Indemnitee therein. (h) If the Indemnitee subsequently recovers all or part of the Third Party Claim from any other person legally obligated to pay the claim, the Indemnitee shall forthwith repay to the Indemnitor the amounts recovered up to an amount not exceeding the payment made by the Indemnitor to the Indemnitee by way of indemnity.
Appears in 1 contract
Sources: Stock Purchase Agreement and Plan of Merger (Equinox Group Inc)
Claims by Third Parties. Other than in With respect to claims made by third parties, the case Indemnifying Party, upon acknowledgment of any Contestits liability for the claim, which shall be governed by Section 9.7 of this Agreement, if a party to this Agreement seeks indemnity hereunder with respect to a claim by a third party:
(a) For the purposes of this Section 9.4, “Third Party Claim” means any demand which has been made on, or communicated to the Purchaser, the Shareholders or the Company by or on behalf of any Person other than the entities aforementioned in this Section 9.4(a) and which, if maintained or enforced, may result in a claim for indemnification of the nature described in Section 9.2 or 9.3 of this Agreement being made.
(b) Promptly upon receipt by Indemnitee of notice of any Third Party Claim in respect of which the Indemnitee proposes to demand indemnification from the Indemnitor, the Indemnitee shall forthwith give notice to that effect to the Indemnitor.
(c) The Indemnitor shall have the right, exercisable by giving notice to the Indemnitee not later than 30 days after receipt of the notice described in Section 9.2 (c) or 9.3(c), as the case may be, entitled to assume the control of the defense, compromise defense of such action or settlement of the Third Party Claim.
(d) Upon the assumption of control by the Indemnitor as aforesaid, the Indemnitor shall, at its expense, diligently proceed claim with the defense, compromise or settlement of the Third Party Claim at the Indemnitor’s sole expense, including employment of counsel reasonably satisfactory to the IndemniteeIndemnified Party; provided, and in connection therewith, the Indemnitee shall cooperate fully, but at the expense of the Indemnitor, to make available to the Indemnitor all pertinent information and witnesses under Indernnitee’s control and to make such assignments and take such other steps as in the opinion of counsel for the Indemnitor are necessary to enable the Indemnitor to conduct such defense, provided always that the Indemnitee shall be entitled to reasonable security from the Indemnitor for any expense, costs or other liabilities to which it may be or may become exposed by reason of such cooperation.that:
(ei) The final determination of any such Third the Indemnified Party Claim, including all related costs and expenses, will be binding and conclusive upon the parties hereto as to the validity or invalidity, as the case may be, of such Third Party Claim against the Indemnitor hereunder.
(f) Should the Indemnitor fail to give notice to the Indemnitee as provided in clause (c) hereof or in the event the Indemnitor declines to undertake the defense of any Third Party Claim, action or proceeding when first notified thereof, the Indemnitee shall keep the Indemnitor advised as to the current status and progress thereof. The Indemnitee agrees not to make any offer of settlement without first having provided five (5) days advance written notice thereof to the Indemnitor.
(g) In the event the Indemnitor undertakes the defense of any such claim, action or proceeding, the Indemnitee shall nevertheless be entitled to participate in (but not direct) the defense thereof with of such claim and to employ counsel of its own choice and at its own expense, and expense to assist in the parties agree to cooperate fully with one another in connection with the defense and/or settlement thereof; provided, however, that any decision to settle any handling of such claim, action or proceeding shall be at the Indemnitor’s sole discretion. The foregoing notwithstanding, except with the prior written consent of the Indemnitee, which shall not be unreasonably withheld, ;
(ii) no Indemnitor, in the defense of any such claim or litigation, Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that provides for injunctive without the consent of the Indemnified Party (A) if such judgment or other nonmonetary relief affecting the Indemnitee or that settlement does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee each Indemnified Party of a release from all liability in respect to such claim, (B) if such judgment or settlement would result in the finding or admission of any wrongdoing or violation of Law, or (C) if as a result of such consent or settlement, injunctive or other equitable relief would be imposed against the Indemnified Party or such judgment or settlement could interfere with or adversely affect the business, operations or assets of the Indemnified Party; and
(iii) if the Indemnifying Party does not assume control of the defense of such claim in accordance with the foregoing provisions within ten days after receipt of notice of the claim or, if having taken over such defense does not in the reasonable opinion of the Indemnified Party proceed diligently to defend such claim, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party pursuant to the terms of this Agreement. The Indemnifying Party shall be bound by any defense or settlement that the Indemnified Party shall make in good faith with respect to such claim or litigation. From claim, and after delivery of the notice referred to in Section 9.4(c) above, the Indemnitor Indemnifying Party shall be relieved of the obligation to promptly reimburse the Indemnitee for any other legal, accounting or other out-of-pocket costs and expenses thereafter incurred by the Indemnitee Indemnified Party therefore in accordance with respect to the defense of such claim, action or proceeding notwithstanding any participation by the Indemnitee thereinthis Article VIII.
(h) If the Indemnitee subsequently recovers all or part of the Third Party Claim from any other person legally obligated to pay the claim, the Indemnitee shall forthwith repay to the Indemnitor the amounts recovered up to an amount not exceeding the payment made by the Indemnitor to the Indemnitee by way of indemnity.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Engineering Animation Inc)
Claims by Third Parties. Other than in With respect to claims made by third parties, the case of any Contest, which Indemnifying Party shall be governed by Section 9.7 of this Agreement, if a party to this Agreement seeks indemnity hereunder with respect to a claim by a third party:
(a) For the purposes of this Section 9.4, “Third Party Claim” means any demand which has been made on, or communicated to the Purchaser, the Shareholders or the Company by or on behalf of any Person other than the entities aforementioned in this Section 9.4(a) and which, if maintained or enforced, may result in a claim for indemnification of the nature described in Section 9.2 or 9.3 of this Agreement being made.
(b) Promptly upon receipt by Indemnitee of notice of any Third Party Claim in respect of which the Indemnitee proposes to demand indemnification from the Indemnitor, the Indemnitee shall forthwith give notice to that effect to the Indemnitor.
(c) The Indemnitor shall have the right, exercisable by giving notice to the Indemnitee not later than 30 days after receipt of the notice described in Section 9.2 (c) or 9.3(c), as the case may be, entitled to assume the control of the defense, compromise defense of such action or settlement of the Third Party Claim.
(d) Upon the assumption of control by the Indemnitor as aforesaid, the Indemnitor shall, at its expense, diligently proceed claim with the defense, compromise or settlement of the Third Party Claim at the Indemnitor’s sole expense, including employment of counsel reasonably satisfactory to the IndemniteeIndemnified Party; provided, and in connection therewithhowever, that: (i) the Indemnitee Indemnified Party shall cooperate fully, but at the expense of the Indemnitor, to make available to the Indemnitor all pertinent information and witnesses under Indernnitee’s control and to make such assignments and take such other steps as in the opinion of counsel for the Indemnitor are necessary to enable the Indemnitor to conduct such defense, provided always that the Indemnitee shall be entitled to reasonable security from the Indemnitor for any expense, costs or other liabilities to which it may be or may become exposed by reason of such cooperation.
(e) The final determination of any such Third Party Claim, including all related costs and expenses, will be binding and conclusive upon the parties hereto as to the validity or invalidity, as the case may be, of such Third Party Claim against the Indemnitor hereunder.
(f) Should the Indemnitor fail to give notice to the Indemnitee as provided in clause (c) hereof or in the event the Indemnitor declines to undertake the defense of any Third Party Claim, action or proceeding when first notified thereof, the Indemnitee shall keep the Indemnitor advised as to the current status and progress thereof. The Indemnitee agrees not to make any offer of settlement without first having provided five (5) days advance written notice thereof to the Indemnitor.
(g) In the event the Indemnitor undertakes the defense of any such claim, action or proceeding, the Indemnitee shall nevertheless be entitled to participate in (but not direct) the defense thereof with counsel of its own choice such claim and to employ counsel, in each case at its or his own expense, and to assist in the parties agree to cooperate fully with one another in connection with the defense and/or settlement thereof; provided, however, that any decision to settle any handling of such claim, action or proceeding shall be at ; (ii) the Indemnitor’s sole discretion. The foregoing notwithstanding, except with the prior written consent of the Indemnitee, which Indemnifying Party shall not be unreasonably withheld, no Indemnitor, in the defense of any such claim or litigation, shall consent to the entry of any judgment or enter into any settlement that provides for without the written consent of the Indemnified Party, unless (A) the judgment or proposed settlement involves only the payment of money damages and does not impose any injunctive or other nonmonetary relief affecting on the Indemnitee Indemnified Party and (B) there is no admission or that finding of any breach or default, any violation of law or any other wrongdoing against the Indemnified Party; (iii) if the Indemnifying Party does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee assume control of a release from all liability with respect to such claim or litigation. From and after delivery of the notice referred to in Section 9.4(c) above, the Indemnitor shall be relieved of the obligation to reimburse the Indemnitee for any other legal, accounting or other out-of-pocket costs and expenses thereafter incurred by the Indemnitee with respect to the defense of such claim, action or proceeding notwithstanding any participation by claim in accordance with the Indemnitee therein.
(h) If the Indemnitee subsequently recovers all or part foregoing provisions promptly after receipt of the Third Party Claim from any other person legally obligated to pay notice of the claim, the Indemnitee shall forthwith repay Indemnified Party will have the right to defend such claim in such manner as it may deem appropriate at the reasonable cost and expense of the Indemnifying Party and with the assistance of counsel reasonably satisfactory to the Indemnitor Indemnifying Party, and the amounts recovered up Indemnifying Party will promptly reimburse the Indemnified Party from time to an amount time therefore in accordance with this Section 6; provided that the Indemnified Party will not exceeding the payment made by the Indemnitor be entitled to consent to the Indemnitee by way entry of indemnityany judgment or enter into any settlement without the written consent of the Indemnifying Party, which shall not be unreasonably withheld; and (iv) in connection with such indemnification, the Indemnified Party will cooperate in all reasonable requests of the Indemnifying Party.
Appears in 1 contract
Sources: Stock Purchase Agreement (STERLING CONSOLIDATED Corp)
Claims by Third Parties. Other than in Upon the case assertion by any third party of any Contest, which shall be governed by a claim that may give rise to a liability of Seller under Section 9.7 6.2 of this Agreement, if a party to this Agreement seeks indemnity hereunder with respect to a claim by a third party:
(a) For the purposes or Buyer under Section 6.3 of this Section 9.4Agreement, “Third the Indemnified Party Claim” means any demand which has been made on, or communicated shall promptly notify the Indemnifying Party in writing of the existence of such claim. Upon written notification to the Purchaser, the Shareholders or the Company by or on behalf of any Person other than the entities aforementioned in this Section 9.4(aIndemnified Party delivered within seven (7) and which, if maintained or enforced, may result in a claim for indemnification of the nature described in Section 9.2 or 9.3 of this Agreement being made.
(b) Promptly upon receipt by Indemnitee of notice of any Third Party Claim in respect of which the Indemnitee proposes to demand indemnification from the Indemnitor, the Indemnitee shall forthwith give notice to that effect to the Indemnitor.
(c) The Indemnitor shall have the right, exercisable by giving notice to the Indemnitee not later than 30 days after receipt of notice from the notice described in Section 9.2 (c) or 9.3(c)Indemnified Party of the assertion of any such claim, as the case Indemnifying Party may be, to assume the control of undertake the defense, compromise or settlement of the Third Party Claim.such claim, provided that:
(da) Upon the assumption Indemnifying Party shall timely provide to the Indemnified Party all information with respect to such defense, compromise or settlement as such Indemnified - 19 - BA0DOCS1/0039024.07 Party may request; and
(b) such Indemnifying Party shall not assume any position or take any action in connection with such defense, compromise or settlement that would impose an obligation of control by any kind or restrict the Indemnitor as aforesaidactions of the Indemnified Party, the Indemnitor shallit being understood that such Indemnifying Party would be acting solely on its own behalf, for its own account and at its expense, diligently proceed with own risk. In the event that such Indemnifying Party does not undertake the defense, compromise or settlement of such claim as provided in the Third foregoing, the Indemnified Party Claim shall have the right to undertake the defense, compromise or settlement of such claim on behalf of, for the account of, and at the Indemnitor’s sole expense, including employment of counsel reasonably satisfactory to the Indemnitee, risk and in connection therewith, the Indemnitee shall cooperate fully, but at the expense of the IndemnitorIndemnifying Party. The Indemnified Party shall, to make available to however, promptly notify the Indemnitor all pertinent information and witnesses under Indernnitee’s control and to make such assignments and take such other steps as in the opinion of counsel for the Indemnitor are necessary to enable the Indemnitor to conduct such defense, provided always that the Indemnitee shall be entitled to reasonable security from the Indemnitor for any expense, costs or other liabilities to which it may be or may become exposed by reason of such cooperation.
(e) The final determination Indemnifying Party of any such Third Party Claim, including all related costs and expenses, will be binding and conclusive upon the parties hereto as to the validity compromise or invalidity, as the case may be, of such Third Party Claim against the Indemnitor hereunder.
(f) Should the Indemnitor fail to give notice to the Indemnitee as provided in clause (c) hereof or in the event the Indemnitor declines to undertake the defense of any Third Party Claim, action or proceeding when first notified thereof, the Indemnitee shall keep the Indemnitor advised as to the current status and progress thereof. The Indemnitee agrees not to make any offer of settlement without first having provided five (5) days advance written notice thereof to the Indemnitor.
(g) In the event the Indemnitor undertakes the defense of any such claim, action or proceeding, the Indemnitee shall nevertheless be entitled to participate in (but not direct) the defense thereof with counsel of its own choice and at its own expense, and the parties agree to cooperate fully with one another in connection with the defense and/or settlement thereof; provided, however, that any decision to settle any such claim, action or proceeding . The Indemnifying Party shall be at the Indemnitor’s sole discretion. The foregoing notwithstanding, except with the prior written consent of the Indemnitee, which shall not be unreasonably withheld, no Indemnitor, in the defense of any such claim or litigation, shall consent to entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnitee or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee of a release from all liability with respect to such claim or litigation. From and after delivery of the notice referred to in Section 9.4(c) above, the Indemnitor shall be relieved of the obligation to reimburse the Indemnitee for any other legal, accounting or other out-of-pocket costs and expenses thereafter incurred by the Indemnitee with respect to the defense of such claim, action or proceeding notwithstanding any participation by the Indemnitee therein.
(h) If the Indemnitee subsequently recovers all or part of the Third Party Claim from any other person legally obligated to pay any compromise or settlement within thirty (30) days after receipt of written notice from the claim, the Indemnitee shall forthwith repay to the Indemnitor the amounts recovered up to an amount not exceeding the payment made by the Indemnitor to the Indemnitee by way of indemnityIndemnified Party describing such compromise or settlement in reasonable detail.
Appears in 1 contract
Claims by Third Parties. Other than in the case of any Contest, which shall be governed by Section 9.7 of this Agreement, if a party to this Agreement seeks indemnity hereunder with With respect to a claim claims made by a third party:
(a) For the purposes of this Section 9.4, “Third Party Claim” means any demand which has been made on, or communicated to the Purchaserparties, the Shareholders or the Company by or on behalf of any Person other than the entities aforementioned in this Section 9.4(a) and which, if maintained or enforced, may result in a claim for indemnification of the nature described in Section 9.2 or 9.3 of this Agreement being made.
(b) Promptly upon receipt by Indemnitee of notice of any Third Indemnifying Party Claim in respect of which the Indemnitee proposes to demand indemnification from the Indemnitor, the Indemnitee shall forthwith give notice to that effect to the Indemnitor.
(c) The Indemnitor shall have the right, exercisable by giving notice to the Indemnitee not later than 30 days after receipt of the notice described in Section 9.2 (c) or 9.3(c), as the case may be, will be entitled to assume the control of the defense, compromise defense of such action or settlement of the Third Party Claim.
(d) Upon the assumption of control by the Indemnitor as aforesaid, the Indemnitor shall, at its expense, diligently proceed claim with the defense, compromise or settlement of the Third Party Claim at the Indemnitor’s sole expense, including employment of counsel reasonably satisfactory to the IndemniteeIndemnified Party; provided, and in connection therewithhowever, the Indemnitee shall cooperate fully, but at the expense of the Indemnitor, to make available to the Indemnitor all pertinent information and witnesses under Indernnitee’s control and to make such assignments and take such other steps as in the opinion of counsel for the Indemnitor are necessary to enable the Indemnitor to conduct such defense, provided always that the Indemnitee shall be entitled to reasonable security from the Indemnitor for any expense, costs or other liabilities to which it may be or may become exposed by reason of such cooperation.that:
(ei) The final determination of any such Third the Indemnified Party Claim, including all related costs and expenses, will be binding and conclusive upon the parties hereto as to the validity or invalidity, as the case may be, of such Third Party Claim against the Indemnitor hereunder.
(f) Should the Indemnitor fail to give notice to the Indemnitee as provided in clause (c) hereof or in the event the Indemnitor declines to undertake the defense of any Third Party Claim, action or proceeding when first notified thereof, the Indemnitee shall keep the Indemnitor advised as to the current status and progress thereof. The Indemnitee agrees not to make any offer of settlement without first having provided five (5) days advance written notice thereof to the Indemnitor.
(g) In the event the Indemnitor undertakes the defense of any such claim, action or proceeding, the Indemnitee shall nevertheless be entitled to participate in (but not direct) the defense thereof with of such claim and to employ counsel of its own choice and at its own expense, and expense to assist in the parties agree to cooperate fully with one another in connection with the defense and/or settlement thereof; provided, however, that any decision to settle any handling of such claim, action or proceeding shall be at the Indemnitor’s sole discretion. The foregoing notwithstanding, except with the prior written consent of the Indemnitee, which shall not be unreasonably withheld, ;
(ii) no Indemnitor, in the defense of any such claim or litigation, shall Indemnifying Party will consent to (A) the entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnitee or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee each Indemnified Party of a release from all liability with in respect to of such claim or litigation. From and after delivery (B) if, pursuant to or as a result of such consent or settlement, injunctive or other equitable relief would be imposed against the Indemnified Party or such judgment or settlement could materially interfere with the business, operations or assets of the notice referred to in Section 9.4(cIndemnified Party; and,
(iii) above, if the Indemnitor shall be relieved Indemnifying Party does not assume control of the obligation to reimburse the Indemnitee for any other legal, accounting or other out-of-pocket costs and expenses thereafter incurred by the Indemnitee with respect to the defense of such claim, action or proceeding notwithstanding any participation by claim in accordance with the Indemnitee therein.
foregoing provisions within ten (h10) If the Indemnitee subsequently recovers all or part business days after receipt of the Third Party Claim from any other person legally obligated to pay notice of the claim, the Indemnitee shall forthwith repay Indemnified Party will have the right to defend such claim in such manner as it may deem appropriate at the cost and 49 expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Article 8; provided that the Indemnified Party will not be entitled to consent to the Indemnitor entry of any judgment or enter into any settlement of such claim that does not include as an unconditional term thereof the amounts recovered up giving by each claimant or plaintiff to an amount not exceeding each Indemnifying Party of a release from all liability in respect of such claim without the payment made by prior written consent of the Indemnitor Indemnifying Party if, pursuant to or as a result of such consent or settlement, injunctive or other equitable relief would be imposed against the Indemnitee by way Indemnifying Party or such judgment or settlement could materially interfere with the business, operations or assets of indemnitythe Indemnifying Party.
Appears in 1 contract
Claims by Third Parties. Other than in If, after Closing, the case Purchaser becomes aware of any Contest, which shall be governed by Section 9.7 of this Agreement, if a party to this Agreement seeks indemnity hereunder with respect matter that may give rise to a Claim which results from a claim made or threatened against the Purchaser or any Group Company by a third partyparty (a “Third Party Claim”) then:
(a) For Notice: the purposes of this Section 9.4Purchaser will, “Third Party Claim” means any demand which has been made onas soon as reasonably practicable, or communicated to the Purchaser, the Shareholders or the Company by or on behalf of any Person other than the entities aforementioned in this Section 9.4(a) and which, if maintained or enforced, may result in a claim for indemnification of the nature described in Section 9.2 or 9.3 of this Agreement being made.
(b) Promptly upon receipt by Indemnitee of notice of any Third Party Claim in respect of which the Indemnitee proposes to demand indemnification from the Indemnitor, the Indemnitee shall forthwith give notice to that effect to the Indemnitor.
(c) The Indemnitor shall have the right, exercisable by giving notice to the Indemnitee not later than 30 days after receipt of the notice described in Section 9.2 (c) or 9.3(c), as the case may be, to assume the control of the defense, compromise or settlement Securityholders’ Representative of the Third Party Claim., it being understood that any notice given to the Securityholders’ Representative shall be deemed to constitute notice to the Indemnifying Parties;
(db) Upon the assumption Control of control Action: if reasonably requested by the Indemnitor Securityholders’ Representative within thirty (30) days from receipt of the notice referred to in 8.5(a) or such shorter period as aforesaidthe Purchaser has notified the Indemnifying Parties is required by applicable Law to commence such contest, and provided that the Indemnitor shallSecurityholders’ Representative has, on behalf of the Indemnifying Parties, acknowledged to the Purchaser that the Third Party Claim is covered by the indemnity herein:
(i) the Purchaser must at the expense of the Indemnifying Parties in good faith contest the validity, applicability or the amount of such Third Party Claim by all reasonable proceedings or, at its expensethe option of the Securityholders’ Representative, diligently proceed with will be entitled to conduct such contestation or, if the defensecontestation thereof is not in the control of the Purchaser, compromise or settlement exercise any rights in respect of the Third Party Claim as instructed by the Securityholders’ Representative from time to time; and
(ii) the Securityholders’ Representative will (at the Indemnitor’s sole expense, including employment of counsel reasonably satisfactory to the Indemnitee, and in connection therewith, the Indemnitee shall cooperate fully, but at the expense experience of the Indemnitor, to make available to the Indemnitor all pertinent information and witnesses under Indernnitee’s control and to make such assignments and take such other steps as in the opinion of counsel for the Indemnitor are necessary to enable the Indemnitor to conduct such defense, provided always that the Indemnitee shall Indemnifying Parties) be entitled to reasonable security from control all aspects of the Indemnitor for any expense, costs or other liabilities to which it may be or may become exposed by reason of such cooperation.
(e) The final determination of any such Third Party Claim, including all related costs and expenses, will be binding and conclusive upon the parties hereto as to the validity dealings with Governmental Entities or invalidity, as the case may be, of such Third Party Claim against the Indemnitor hereunder.third parties;
(f) Should the Indemnitor fail to give notice to the Indemnitee as provided in clause (c) hereof or Assistance: in the event the Indemnitor declines to undertake the defense of any contest of any Third Party Claim, action whether by the Securityholders’ Representative or proceeding when first notified thereofthe Purchaser, the Indemnitee shall keep the Indemnitor advised other Party must provide all such assistance, including access to documents and officers and employees, as to the current status and progress thereof. The Indemnitee agrees not to make any offer of settlement without first having provided five (5) days advance written notice thereof to the Indemnitor.
(g) In the event the Indemnitor undertakes the defense of any such claim, action or proceeding, the Indemnitee shall nevertheless may be entitled to participate in (but not direct) the defense thereof with counsel of its own choice and at its own expense, and the parties agree to cooperate fully with one another in connection with the defense and/or settlement thereof; provided, however, that any decision to settle any such claim, action or proceeding shall be at the Indemnitor’s sole discretion. The foregoing notwithstanding, except with the prior written consent of the Indemnitee, which shall not be unreasonably withheld, no Indemnitor, in the defense of any such claim or litigation, shall consent to entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnitee or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee of a release from all liability with respect to such claim or litigation. From and after delivery of the notice referred to in Section 9.4(c) above, the Indemnitor shall be relieved of the obligation to reimburse the Indemnitee for any other legal, accounting or other out-of-pocket costs and expenses thereafter incurred requested by the Indemnitee with respect to Party conducting the defense of such claim, action or proceeding notwithstanding any participation by the Indemnitee therein.
(h) If the Indemnitee subsequently recovers all or part contestation of the Third Party Claim from any and the other person legally obligated Party shall be entitled (at its own expense) to pay be represented by separate counsel in the claim, the Indemnitee shall forthwith repay to the Indemnitor the amounts recovered up to an amount not exceeding the payment made by the Indemnitor to the Indemnitee by way of indemnity.contestation;
Appears in 1 contract
Claims by Third Parties. Other than in With respect to claims made by third parties, the case of any Contest, which Indemnifying Party shall be governed by Section 9.7 of this Agreement, if a party to this Agreement seeks indemnity hereunder with respect to a claim by a third party:
(a) For the purposes of this Section 9.4, “Third Party Claim” means any demand which has been made on, or communicated to the Purchaser, the Shareholders or the Company by or on behalf of any Person other than the entities aforementioned in this Section 9.4(a) and which, if maintained or enforced, may result in a claim for indemnification of the nature described in Section 9.2 or 9.3 of this Agreement being made.
(b) Promptly upon receipt by Indemnitee of notice of any Third Party Claim in respect of which the Indemnitee proposes to demand indemnification from the Indemnitor, the Indemnitee shall forthwith give notice to that effect to the Indemnitor.
(c) The Indemnitor shall have the right, exercisable by giving notice to the Indemnitee not later than 30 days after receipt of the notice described in Section 9.2 (c) or 9.3(c), as the case may be, entitled to assume the control of the defense, compromise defense of such action or settlement of the Third Party Claim.
(d) Upon the assumption of control by the Indemnitor as aforesaid, the Indemnitor shall, at its expense, diligently proceed claim with the defense, compromise or settlement of the Third Party Claim at the Indemnitor’s sole expense, including employment of counsel reasonably satisfactory to the IndemniteeIndemnified Party, and in connection therewithprovided, the Indemnitee shall cooperate fullyhowever, but at the expense of the Indemnitor, to make available to the Indemnitor all pertinent information and witnesses under Indernnitee’s control and to make such assignments and take such other steps as in the opinion of counsel for the Indemnitor are necessary to enable the Indemnitor to conduct such defense, provided always that the Indemnitee shall be entitled to reasonable security from the Indemnitor for any expense, costs or other liabilities to which it may be or may become exposed by reason of such cooperation.that:
(ei) The final determination of any such Third the Indemnified Party Claim, including all related costs and expenses, will be binding and conclusive upon the parties hereto as to the validity or invalidity, as the case may be, of such Third Party Claim against the Indemnitor hereunder.
(f) Should the Indemnitor fail to give notice to the Indemnitee as provided in clause (c) hereof or in the event the Indemnitor declines to undertake the defense of any Third Party Claim, action or proceeding when first notified thereof, the Indemnitee shall keep the Indemnitor advised as to the current status and progress thereof. The Indemnitee agrees not to make any offer of settlement without first having provided five (5) days advance written notice thereof to the Indemnitor.
(g) In the event the Indemnitor undertakes the defense of any such claim, action or proceeding, the Indemnitee shall nevertheless be entitled to participate in (but not direct) the defense thereof with of such claim and to employ counsel of its own choice and at its own expense, and expense to assist in the parties agree to cooperate fully with one another in connection with the defense and/or settlement thereof; provided, however, that any decision to settle any handling of such claim, action or proceeding shall be at the Indemnitor’s sole discretion. The foregoing notwithstanding, except with the prior written consent of the Indemnitee, which shall not be unreasonably withheld, ;
(ii) no Indemnitor, in the defense of any such claim or litigation, Indemnifying Party shall consent to (x) the entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnitee or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee each Indemnified Party of a release from all liability in respect of such claim, or (y) if, pursuant to or as a result of such consent or settlement, injunctive or other equitable relief would be imposed against the Indemnified Party or such judgment or settlement could materially interfere with respect to such claim the business, operations or litigation. From and after delivery assets of the notice referred to in Section 9.4(cIndemnified Party; and
(iii) above, if the Indemnitor shall be relieved Indemnifying Party does not assume control of the obligation to reimburse the Indemnitee for any other legal, accounting or other out-of-pocket costs and expenses thereafter incurred by the Indemnitee with respect to the defense of such claim, action or proceeding notwithstanding any participation by claim in accordance with the Indemnitee therein.
foregoing provisions within five (h5) If the Indemnitee subsequently recovers all or part business days after receipt of the Third Party Claim from any other person legally obligated to pay proper notice of the claim, the Indemnitee Indemnified Party shall forthwith repay have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefor in accordance with this Article 7; provided that the Indemnified Party shall not be entitled to consent to the Indemnitor entry of any judgment or enter into any settlement of such claim that does not include as an unconditional term thereof the amounts recovered up giving by each claimant or plaintiff to an amount not exceeding each Indemnifying Party of a release from all liability in respect of such claim without the payment made by prior written consent of the Indemnitor Indemnifying Party if, pursuant to or as a result of such consent or settlement, injunctive or other equitable relief would be imposed against the Indemnitee by way Indemnifying Party or such judgment or settlement could materially interfere with the business, operations or assets of indemnitythe Indemnifying Party.
Appears in 1 contract
Sources: Stock Purchase Agreement (Mocon Inc)
Claims by Third Parties. Other than in With respect to claims made by third parties, the case of any Contest, which Indemnifying Party shall be governed by Section 9.7 of this Agreement, if a party to this Agreement seeks indemnity hereunder with respect to a claim by a third party:
(a) For the purposes of this Section 9.4, “Third Party Claim” means any demand which has been made on, or communicated to the Purchaser, the Shareholders or the Company by or on behalf of any Person other than the entities aforementioned in this Section 9.4(a) and which, if maintained or enforced, may result in a claim for indemnification of the nature described in Section 9.2 or 9.3 of this Agreement being made.
(b) Promptly upon receipt by Indemnitee of notice of any Third Party Claim in respect of which the Indemnitee proposes to demand indemnification from the Indemnitor, the Indemnitee shall forthwith give notice to that effect to the Indemnitor.
(c) The Indemnitor shall have the right, exercisable by giving notice to the Indemnitee not later than 30 days after receipt of the notice described in Section 9.2 (c) or 9.3(c), as the case may be, entitled to assume the control of the defense, compromise defense of such action or settlement of the Third Party Claim.
(d) Upon the assumption of control by the Indemnitor as aforesaid, the Indemnitor shall, at its expense, diligently proceed claim with the defense, compromise or settlement of the Third Party Claim at the Indemnitor’s sole expense, including employment of counsel reasonably satisfactory to the IndemniteeIndemnified Party; provided, and in connection therewithhowever, the Indemnitee shall cooperate fully, but at the expense of the Indemnitor, to make available to the Indemnitor all pertinent information and witnesses under Indernnitee’s control and to make such assignments and take such other steps as in the opinion of counsel for the Indemnitor are necessary to enable the Indemnitor to conduct such defense, provided always that the Indemnitee shall be entitled to reasonable security from the Indemnitor for any expense, costs or other liabilities to which it may be or may become exposed by reason of such cooperation.that:
(ei) The final determination of any such Third the Indemnified Party Claim, including all related costs and expenses, will be binding and conclusive upon the parties hereto as to the validity or invalidity, as the case may be, of such Third Party Claim against the Indemnitor hereunder.
(f) Should the Indemnitor fail to give notice to the Indemnitee as provided in clause (c) hereof or in the event the Indemnitor declines to undertake the defense of any Third Party Claim, action or proceeding when first notified thereof, the Indemnitee shall keep the Indemnitor advised as to the current status and progress thereof. The Indemnitee agrees not to make any offer of settlement without first having provided five (5) days advance written notice thereof to the Indemnitor.
(g) In the event the Indemnitor undertakes the defense of any such claim, action or proceeding, the Indemnitee shall nevertheless be entitled to participate in (but not direct) the defense thereof with of such claim and to employ counsel of its own choice and at its own expense, and expense to assist in the parties agree to cooperate fully with one another in connection with the defense and/or settlement thereof; provided, however, that any decision to settle any handling of such claim, action or proceeding shall be at the Indemnitor’s sole discretion. The foregoing notwithstanding, except with the prior written consent of the Indemnitee, which shall not be unreasonably withheld, ;
(ii) no Indemnitor, in the defense of any such claim or litigation, Indemnifying Party shall consent to (A) the entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnitee or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee each Indemnified Party of a release from all liability with in respect to of such claim or litigation. From and after delivery (B) if, pursuant to or as a result of such consent or settlement, injunctive or other equitable relief would be imposed against the Indemnified Party or such judgment or settlement could materially interfere with the business, operations or assets of the notice referred to in Section 9.4(cIndemnified Party; and,
(iii) above, if the Indemnitor shall be relieved Indemnifying Party does not assume control of the obligation to reimburse the Indemnitee for any other legal, accounting or other out-of-pocket costs and expenses thereafter incurred by the Indemnitee with respect to the defense of such claimclaim in accordance with the foregoing provisions within ten (10) business days after the Notice Delivery Date, action or proceeding notwithstanding any participation by the Indemnitee therein.
(h) If Indemnified Party shall have the Indemnitee subsequently recovers all or part right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Third Indemnifying Party, and the Indemnifying Party Claim from any other person legally obligated will promptly reimburse the Indemnified Party therefore in accordance with this Article 8; provided that the Indemnified Party shall not be entitled to pay the claim, the Indemnitee shall forthwith repay consent to the Indemnitor entry of any judgment or enter into any settlement of such claim that does not include as an unconditional term thereof the amounts recovered up giving by each claimant or plaintiff to an amount not exceeding each Indemnifying Party of a release from all liability in respect of such claim without the payment made by prior written consent of the Indemnitor Indemnifying Party if, pursuant to or as a result of such consent or settlement, injunctive or other equitable relief would be imposed against the Indemnitee by way Indemnifying Party or such judgment or settlement could materially interfere with the business, operations or assets of indemnitythe Indemnifying Party.
Appears in 1 contract
Sources: Stock Purchase Agreement (Clarion Technologies Inc/De/)
Claims by Third Parties. Other than in the case of any Contest, which shall be governed by Section 9.7 of this Agreement, if a party to this Agreement seeks indemnity hereunder with respect to a claim by a third party:
(a) For the purposes of this Section 9.4, “Third Party Claim” means any demand which has been made on, or communicated to the Purchaser, the Shareholders or the Company by or on behalf of any Person other than the entities aforementioned in this Section 9.4(a) and which, if maintained or enforced, may result in a claim for indemnification of the nature described in Section 9.2 or 9.3 of this Agreement being made.
(b) 6.4.1 Promptly upon receipt by Indemnitee either the Purchaser or the Vendor (herein referred to as the "Indemnitee") of notice of any Third Party Claim in respect of which the Indemnitee proposes to demand indemnification from the other party to this Agreement (the "Indemnitor"), the Indemnitee shall forthwith give notice to that effect to the Indemnitor.
(c) 6.4.2 The Indemnitor shall have the right, exercisable by giving notice to the Indemnitee not later than 30 days after receipt of the notice described in Section 9.2 (c) or 9.3(c), as the case may be6.3.1, to assume the control of the defensedefence, compromise or settlement of the Third Party Claim, provided that:
(1) the Indemnitor shall first deliver to the Indemnitee its written consent to be joined as a party to any action or proceeding relating thereto; and,
(2) the Indemnitor shall at the Indemnitee's request furnish it with reasonable security against any costs or other liabilities to which it may be or become exposed by reason of such defence, compromise or settlement.
(d) 6.4.3 Upon the assumption of control by the Indemnitor as aforesaid, the Indemnitor shall, at its expense, diligently proceed with the defensedefence, compromise or settlement of the Third Party Claim at the Indemnitor’s 's sole expense, including employment of counsel reasonably satisfactory to the Indemnitee, and in connection therewithwith such proceedings, the Indemnitee shall cooperate co-operate fully, but at the expense of the Indemnitor, to make available to the Indemnitor all pertinent information and witnesses under Indernnitee’s the Indemnitee's control and to make such assignments and take such other steps as in the opinion of counsel for the Indemnitor are necessary to enable the Indemnitor to conduct such defensedefence, provided always that the Indemnitee shall be entitled to reasonable security from the Indemnitor for any expense, costs or other liabilities to which it may be maybe or may become exposed by reason of such cooperationco-operation.
(e) 6.4.4 The final determination of any such Third Party Claim, including all related costs and expensesexpense, will be binding and conclusive upon the parties hereto Parties as to the validity or invalidity, as the case may be, of such Third Party Claim against the Indemnitor hereunderIndemnitor.
(f) 6.4.5 Should the Indemnitor fail to give notice to the Indemnitee as provided in clause (c) hereof or in the event the Indemnitor declines to undertake the defense of any Third Party Claim, action or proceeding when first notified thereofSection 6.3.2, the Indemnitee shall keep the Indemnitor advised as to the current status and progress thereof. The Indemnitee agrees not to make any offer of settlement without first having provided five (5) days advance written notice thereof to the Indemnitor.
(g) In the event the Indemnitor undertakes the defense of any such claim, action or proceeding, the Indemnitee shall nevertheless be entitled to participate in (but not direct) the defense thereof with counsel of its own choice and at its own expense, and the parties agree to cooperate fully with one another in connection with the defense and/or make such settlement thereof; provided, however, that any decision to settle any such claim, action or proceeding shall be at the Indemnitor’s sole discretion. The foregoing notwithstanding, except with the prior written consent of the Indemnitee, which shall not be unreasonably withheld, no Indemnitor, in the defense of any such claim or litigation, shall consent to entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnitee or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee of a release from all liability with respect to such claim or litigation. From and after delivery of the notice referred to in Section 9.4(c) above, the Indemnitor shall be relieved of the obligation to reimburse the Indemnitee for any other legal, accounting or other out-of-pocket costs and expenses thereafter incurred by the Indemnitee with respect to the defense of such claim, action or proceeding notwithstanding any participation by the Indemnitee therein.
(h) If the Indemnitee subsequently recovers all or part of the Third Party Claim from as in its sole discretion may appear advisable, and such settlement or any other person legally obligated to pay final determination of the claim, Third Party Claim shall be binding upon the Indemnitee shall forthwith repay to the Indemnitor the amounts recovered up to an amount not exceeding the payment made by the Indemnitor to the Indemnitee by way of indemnityIndemnitor.
Appears in 1 contract
Claims by Third Parties. Other than in 7.5.1 Purchaser will give notice to the case Company promptly after the Purchaser has actual knowledge of any Contest, which shall be governed by Section 9.7 of this Agreement, if a party to this Agreement seeks indemnity hereunder with respect to a claim by from a third party:
, as to which indemnity may be sought, and will permit the Company (at its expense) to assume the defense of any claim or any litigation resulting therefrom; provided that (a) For counsel for the purposes Company who shall conduct the defense of this Section 9.4, “Third Party Claim” means any demand which has been made on, such claim or communicated litigation shall be satisfactory to the Purchaser, Purchaser and (b) the Shareholders omission by the Purchaser or any Purchaser Indemnified Person to give notice as provided herein will not relieve the Company by of its or on behalf of their indemnification obligations under this Agreement. Neither the Purchaser nor any other Purchaser Indemnified Person other than the entities aforementioned in this Section 9.4(a) and which, if maintained shall be required to commence litigation or enforced, may result in to take any action against any third party prior to making a claim for indemnification of the nature described in Section 9.2 or 9.3 of this Agreement being made.
(b) Promptly upon receipt by Indemnitee of notice of any Third Party Claim in respect of which the Indemnitee proposes to demand indemnification from the Indemnitor, the Indemnitee shall forthwith give notice to that effect to the Indemnitor.
(c) The Indemnitor shall have the right, exercisable by giving notice to the Indemnitee not later than 30 days after receipt of the notice described in Section 9.2 (c) or 9.3(c), as the case may be, to assume the control of the defense, compromise or settlement of the Third Party Claim.
(d) Upon the assumption of control by the Indemnitor as aforesaid, the Indemnitor shall, at its expense, diligently proceed with the defense, compromise or settlement of the Third Party Claim at the Indemnitor’s sole expense, including employment of counsel reasonably satisfactory to the Indemnitee, and in connection therewith, the Indemnitee shall cooperate fully, but at the expense of the Indemnitor, to make available to the Indemnitor all pertinent information and witnesses under Indernnitee’s control and to make such assignments and take such other steps as in the opinion of counsel for the Indemnitor are necessary to enable the Indemnitor to conduct such defense, provided always that the Indemnitee shall be entitled to reasonable security from the Indemnitor for any expense, costs or other liabilities to which it may be or may become exposed by reason of such cooperation.
(e) The final determination of any such Third Party Claim, including all related costs and expenses, will be binding and conclusive upon the parties hereto as to the validity or invalidity, as the case may be, of such Third Party Claim against the Indemnitor hereunder.
(f) Should the Indemnitor fail to give notice to the Indemnitee as provided in clause (c) hereof or in the event the Indemnitor declines to undertake the defense of any Third Party Claim, action or proceeding when first notified thereof, the Indemnitee shall keep the Indemnitor advised as to the current status and progress thereof. The Indemnitee agrees not to make any offer of settlement without first having provided five (5) days advance written notice thereof to the Indemnitor.
(g) In the event the Indemnitor undertakes the defense of any such claim, action or proceeding, the Indemnitee shall nevertheless be entitled to participate in (but not direct) the defense thereof with counsel of its own choice and at its own expense, and the parties agree to cooperate fully with one another in connection with the defense and/or settlement thereof; provided, however, that any decision to settle any such claim, action or proceeding shall be at the Indemnitor’s sole discretion. The foregoing notwithstanding, except with the prior written consent of the Indemnitee, which shall not be unreasonably withheld, no Indemnitor, Company in the defense of any such claim or litigation, shall will not, except with the written consent of the Purchaser, consent to the entry of any judgment or enter into any settlement. If the Company assumes the defense of such claim or litigation, no compromise or settlement of such claims may be effected by the Company without the Purchaser’s consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, a Purchaser Indemnified Person will have the right at all times to take over and assume control of the defense, settlement, negotiations or lawsuit relating to any claim or demand, including, without limitation, in the event that provides for injunctive or other nonmonetary relief affecting (y) the Indemnitee or that does not include as an unconditional term thereof the giving by each claimant or plaintiff Company is also a party to such Indemnitee claim or litigation and the Purchaser determines in good faith that joint representation would be inappropriate or (z) the Company fails to provide reasonable assurance to the Purchaser of a release from all liability its financial capacity to defend such claim or litigation and to provide indemnification with respect to such claim or litigation. From In the event that the Company does not accept the defense of any matter as above provided, a Purchaser Indemnified Person will have the full right to defend against any such claim or demand, and after delivery of the notice referred will be entitled to settle or agree to pay in Section 9.4(c) abovefull such claim or demand, in its sole and absolute discretion. In any event, the Indemnitor shall be relieved of the obligation to reimburse the Indemnitee for any other legal, accounting or other out-of-pocket costs and expenses thereafter incurred by the Indemnitee with respect to Company will cooperate in the defense of such claimaction and the records of the Company shall be available to the Purchaser and the other Purchaser Indemnified Persons with respect to such defense. Nothing in this Section 7.5.1 is intended to prevent or restrict the Purchaser from retaining its own counsel in any such matter, action and the Purchaser shall have such right at all times.
7.5.2 The Company will give notice to the Purchaser promptly after the Company has actual knowledge of any claim from a third party, as to which indemnity may be sought, and will permit the Purchaser (at its expense) to assume the defense of any claim or proceeding notwithstanding any participation litigation resulting therefrom; provided that (a) counsel for the Purchaser who shall conduct the defense of such claim or litigation shall be satisfactory to the Company and (b) the omission by the Indemnitee therein.
(h) Company to give notice as provided herein will not relieve the Purchaser of its indemnification obligations under this Agreement. The Company shall not be required to commence litigation or to take any action against any third party prior to making a claim for indemnification hereunder. The Purchaser in the defense of any such claim or litigation, will not, except with the written consent of the Company, consent to the entry of any judgment or enter into any settlement. If the Indemnitee subsequently recovers Purchaser assumes the defense of such claim or litigation, no compromise or settlement of such claims may be effected by the Purchaser without the Company’s consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, the Company will have the right at all or part times to take over and assume control of the Third Party Claim from defense, settlement, negotiations or lawsuit relating to any other person legally obligated claim or demand, including, without limitation, in the event that (y) the Purchaser is also a party to such claim or litigation and the Company determines in good faith that joint representation would be inappropriate or (z) the Purchaser fails to provide reasonable assurance to the Company of its financial capacity to defend such claim or litigation and to provide indemnification with respect to such claim or litigation. In the event that the Purchaser does not accept the defense of any matter as above provided, the Company will have the full right to defend against any such claim or demand, and will be entitled to settle or agree to pay the claimin full such claim or demand, in its sole and absolute discretion. In any event, the Indemnitee Purchaser will cooperate in the defense of such action and the records of the Purchaser shall forthwith repay be available to the Indemnitor the amounts recovered up Company with respect to an amount not exceeding the payment made by the Indemnitor to the Indemnitee by way of indemnitysuch defense.
Appears in 1 contract
Sources: Asset Purchase Agreement (Steinway Musical Instruments Inc)
Claims by Third Parties. Other than If grounds for any Claim arise as a result of, or in the case of connection with any Contestclaim by, which shall be governed by Section 9.7 of this Agreementor alleged liability to, if a party to this Agreement seeks indemnity hereunder with respect to a claim by a third party:
party (a) For the purposes of this Section 9.4, “Third Party Claim” means any demand which has been made on”), or communicated to the Purchaser, : (a) shall notify the Shareholders or the Company by or on behalf of any Person other than the entities aforementioned in this Section 9.4(a) and which, if maintained or enforced, may result in a claim for indemnification Seller of the nature described in Section 9.2 or 9.3 of this Agreement being made.
(b) Promptly upon receipt by Indemnitee of notice of any Third Party Claim as soon as reasonably practicable and in respect of which the Indemnitee proposes to demand indemnification from the Indemnitor, the Indemnitee shall forthwith give notice to that effect to the Indemnitor.
any event: (ci) The Indemnitor shall have the right, exercisable by giving notice to the Indemnitee not later than 30 days after receipt within 25 Business Days of the notice described in Section 9.2 (c) or 9.3(c), as the case may be, to assume the control of the defense, compromise or settlement Purchaser becoming aware of the Third Party Claim.
, and (dii) Upon prior to taking any material step to defend the assumption Third Party Claim or to compromise, settle or waive any right in relation to the Third Party Claim; (b) shall provide the Seller with such information as the Seller may reasonably require relating to the Third Party Claim and shall keep the Seller reasonably informed of control by any material development in the Indemnitor as aforesaid, the Indemnitor shall, at its expense, diligently proceed with the defense, compromise or settlement conduct of the Third Party Claim; (c) shall not (and shall procure that the Joint Venture, the Purchaser and each member of the Purchaser’s Group do not) compromise, settle or waive any right or admit any liability in relation to that Third Party Claim at without the Indemnitor’s sole expensewritten consent of the Seller; and (d) shall, including employment of counsel reasonably satisfactory following written acknowledgment by the Seller that it is liable for such Claim pursuant to the Indemniteeterms of this Agreement and subject to the Seller paying the Purchaser’s Expenses promptly: (i) take, and in connection therewithprocure that the Joint Venture, the Indemnitee shall cooperate fully, but at the expense Purchaser and each member of the IndemnitorPurchaser’s Group take, such action as the Seller may reasonably request to make available to avoid, dispute, resist, appeal, defend or compromise the Indemnitor all pertinent information and witnesses under Indernnitee’s control and to make such assignments and take such other steps as in the opinion of counsel for the Indemnitor are necessary to enable the Indemnitor to conduct such defense, provided always that the Indemnitee shall be entitled to reasonable security from the Indemnitor for any expense, costs or other liabilities to which it may be or may become exposed by reason of such cooperation.
(e) The final determination of any such Third Party Claim, including ; and (ii) use its reasonable endeavours to procure that the Seller is placed in a position to take over the conduct of all related costs negotiations and expenses, will be binding and conclusive upon the parties hereto as to the validity or invalidity, as the case may be, of such Third Party Claim against the Indemnitor hereunder.
(f) Should the Indemnitor fail to give notice to the Indemnitee as provided in clause (c) hereof or in the event the Indemnitor declines to undertake the defense of any Third Party Claim, action or proceeding when first notified thereof, the Indemnitee shall keep the Indemnitor advised as to the current status and progress thereof. The Indemnitee agrees not to make any offer of settlement without first having provided five (5) days advance written notice thereof to the Indemnitor.
(g) In the event the Indemnitor undertakes the defense of any such claim, action or proceeding, the Indemnitee shall nevertheless be entitled to participate in (but not direct) the defense thereof with counsel of its own choice and at its own expense, and the parties agree to cooperate fully with one another proceedings arising in connection with the defense and/or settlement thereof; provided, however, that any decision to settle any such claim, action or proceeding shall be at Third Party Claim following which the Indemnitor’s sole discretion. The foregoing notwithstanding, except with the prior written consent of the Indemnitee, which Seller shall not be unreasonably withheld, no Indemnitor, in the defense of liable for any such claim or litigation, shall consent to entry of any judgment or enter into any settlement that provides for injunctive legal costs or other nonmonetary relief affecting the Indemnitee or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee of a release from all liability with respect to such claim or litigation. From and after delivery of the notice referred to in Section 9.4(c) above, the Indemnitor shall be relieved of the obligation to reimburse the Indemnitee for any other legal, accounting or other out-of-pocket costs and expenses thereafter expense subsequently incurred by the Indemnitee Joint Venture, the Purchaser or any member of the Purchaser’s Group in connection with respect to the defense of such claim, action or proceeding notwithstanding any participation by the Indemnitee therein.
(h) If the Indemnitee subsequently recovers all or part defence of the Third Party Claim from any other person legally obligated to pay the claim, the Indemnitee shall forthwith repay Claim. The Seller will not be liable to the Indemnitor Purchaser only to the amounts recovered up to an amount not exceeding the payment made extent that any Claim arises or is increased by the Indemnitor failure of the Purchaser to the Indemnitee by way of indemnitycomply with its obligations under this Section 12.11.
Appears in 1 contract
Sources: LLP Interest Purchase Agreement (Global Payments Inc)
Claims by Third Parties. Other than in With respect to claims made by third parties, the case of any Contest, which Indemnifying Party shall be governed by Section 9.7 of this Agreement, if a party to this Agreement seeks indemnity hereunder with respect to a claim by a third party:
(a) For the purposes of this Section 9.4, “Third Party Claim” means any demand which has been made on, or communicated to the Purchaser, the Shareholders or the Company by or on behalf of any Person other than the entities aforementioned in this Section 9.4(a) and which, if maintained or enforced, may result in a claim for indemnification of the nature described in Section 9.2 or 9.3 of this Agreement being made.
(b) Promptly upon receipt by Indemnitee of notice of any Third Party Claim in respect of which the Indemnitee proposes to demand indemnification from the Indemnitor, the Indemnitee shall forthwith give notice to that effect to the Indemnitor.
(c) The Indemnitor shall have the right, exercisable by giving notice to the Indemnitee not later than 30 days after receipt of the notice described in Section 9.2 (c) or 9.3(c), as the case may be, entitled to assume the control of the defense, compromise defense of such action or settlement of the Third Party Claim.
(d) Upon the assumption of control by the Indemnitor as aforesaid, the Indemnitor shall, at its expense, diligently proceed claim with the defense, compromise or settlement of the Third Party Claim at the Indemnitor’s sole expense, including employment of counsel reasonably satisfactory to the IndemniteeIndemnified Party; provided, and in connection therewithhowever, the Indemnitee shall cooperate fully, but at the expense of the Indemnitor, to make available to the Indemnitor all pertinent information and witnesses under Indernnitee’s control and to make such assignments and take such other steps as in the opinion of counsel for the Indemnitor are necessary to enable the Indemnitor to conduct such defense, provided always that the Indemnitee shall be entitled to reasonable security from the Indemnitor for any expense, costs or other liabilities to which it may be or may become exposed by reason of such cooperation.that:
(ei) The final determination of any such Third the Indemnified Party Claim, including all related costs and expenses, will be binding and conclusive upon the parties hereto as to the validity or invalidity, as the case may be, of such Third Party Claim against the Indemnitor hereunder.
(f) Should the Indemnitor fail to give notice to the Indemnitee as provided in clause (c) hereof or in the event the Indemnitor declines to undertake the defense of any Third Party Claim, action or proceeding when first notified thereof, the Indemnitee shall keep the Indemnitor advised as to the current status and progress thereof. The Indemnitee agrees not to make any offer of settlement without first having provided five (5) days advance written notice thereof to the Indemnitor.
(g) In the event the Indemnitor undertakes the defense of any such claim, action or proceeding, the Indemnitee shall nevertheless be entitled to participate in (but not direct) the defense thereof with of such claim and to employ counsel of its own choice and at its own expense, and expense to assist in the parties agree to cooperate fully with one another in connection with the defense and/or settlement thereof; provided, however, that any decision to settle any handling of such claim, action or proceeding shall be at the Indemnitor’s sole discretion. The foregoing notwithstanding, except with the prior written consent of the Indemnitee, which shall not be unreasonably withheld, ;
(ii) no Indemnitor, in the defense of any such claim or litigation, Indemnifying Party shall consent to (A) the entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnitee or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee each Indemnified Party of a release from all liability with in respect to of such claim or litigation. From and after delivery (B) if, pursuant to or as a result of such consent or settlement, injunctive or other equitable relief would be imposed against the Indemnified Party or such judgment or settlement could materially interfere with the business, operations or assets of the notice referred to in Section 9.4(cIndemnified Party; and
(iii) above, if the Indemnitor shall be relieved Indemnifying Party does not assume control of the obligation to reimburse the Indemnitee for any other legal, accounting or other out-of-pocket costs and expenses thereafter incurred by the Indemnitee with respect to the defense of such claimclaim in accordance with the foregoing provisions within ten (10) business days after the Notice Delivery Date, action or proceeding notwithstanding any participation by the Indemnitee therein.
(h) If Indemnified Party shall have the Indemnitee subsequently recovers all or part right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Third Indemnifying Party, and the Indemnifying Party Claim from any other person legally obligated will promptly reimburse the Indemnified Party therefore in accordance with this Article 9; provided that the Indemnified Party shall not be entitled to pay the claim, the Indemnitee shall forthwith repay consent to the Indemnitor entry of any judgment or enter into any settlement of such claim that does not include as an unconditional term thereof the amounts recovered up giving by each claimant or plaintiff to an amount each Indemnifying Party of a release from all liability in respect of such claim and provided that Indemnified Party shall not exceeding be entitled without the payment made by prior written consent of the Indemnitor Indemnifying Party to enter into a consent or settlement if injunctive or other equitable relief would be imposed against the Indemnitee by way Indemnifying Party or such judgment or settlement could materially interfere with the business, operations or assets of indemnitythe Indemnifying Party.
Appears in 1 contract
Claims by Third Parties. Other than in the case of any Contest, which shall be governed by Section 9.7 of this Agreement, if a party to this Agreement seeks indemnity hereunder with With respect to a claim claims made by a third party:
(a) For the purposes of this Section 9.4, “Third Party Claim” means any demand which has been made on, or communicated to the Purchaserparties, the Shareholders or the Company by or on behalf of any Person other than the entities aforementioned in this Section 9.4(a) and which, if maintained or enforced, may result in a claim for indemnification of the nature described in Section 9.2 or 9.3 of this Agreement being made.
(b) Promptly upon receipt by Indemnitee of notice of any Third Indemnifying Party Claim in respect of which the Indemnitee proposes to demand indemnification from the Indemnitor, the Indemnitee shall forthwith give notice to that effect to the Indemnitor.
(c) The Indemnitor shall have the right, exercisable by giving notice to the Indemnitee not later than 30 days after receipt of the notice described in Section 9.2 (c) or 9.3(c), as the case may be, will be entitled to assume the control of the defense, compromise defense of such action or settlement of the Third Party Claim.
(d) Upon the assumption of control by the Indemnitor as aforesaid, the Indemnitor shall, at its expense, diligently proceed claim with the defense, compromise or settlement of the Third Party Claim at the Indemnitor’s sole expense, including employment of counsel reasonably satisfactory to the IndemniteeIndemnified Party; provided, and in connection therewithhowever, the Indemnitee shall cooperate fully, but at the expense of the Indemnitor, to make available to the Indemnitor all pertinent information and witnesses under Indernnitee’s control and to make such assignments and take such other steps as in the opinion of counsel for the Indemnitor are necessary to enable the Indemnitor to conduct such defense, provided always that the Indemnitee shall be entitled to reasonable security from the Indemnitor for any expense, costs or other liabilities to which it may be or may become exposed by reason of such cooperation.that:
(ei) The final determination of any such Third the Indemnified Party Claim, including all related costs and expenses, will be binding and conclusive upon the parties hereto as to the validity or invalidity, as the case may be, of such Third Party Claim against the Indemnitor hereunder.
(f) Should the Indemnitor fail to give notice to the Indemnitee as provided in clause (c) hereof or in the event the Indemnitor declines to undertake the defense of any Third Party Claim, action or proceeding when first notified thereof, the Indemnitee shall keep the Indemnitor advised as to the current status and progress thereof. The Indemnitee agrees not to make any offer of settlement without first having provided five (5) days advance written notice thereof to the Indemnitor.
(g) In the event the Indemnitor undertakes the defense of any such claim, action or proceeding, the Indemnitee shall nevertheless be entitled to participate in (but not direct) the defense thereof with of such claim and to employ counsel of its own choice and at its own expense, and expense to assist in the parties agree to cooperate fully with one another in connection with the defense and/or settlement thereof; provided, however, that any decision to settle any handling of such claim, action or proceeding shall be at the Indemnitor’s sole discretion. The foregoing notwithstanding, except with the prior written consent of the Indemnitee, which shall not be unreasonably withheld, ;
(ii) no Indemnitor, in the defense of any such claim or litigation, shall Indemnifying Party will consent to (A) the entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnitee or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee each Indemnified Party of a release from all liability with in respect to of such claim or litigation. From and after delivery (B) if, pursuant to or as a result of such consent or settlement, injunctive or other equitable relief would be imposed against the Indemnified Party or such judgment or settlement could materially interfere with the business, operations or assets of the notice referred to in Section 9.4(cIndemnified Party; and,
(iii) above, if the Indemnitor shall be relieved Indemnifying Party does not assume control of the obligation to reimburse the Indemnitee for any other legal, accounting or other out-of-pocket costs and expenses thereafter incurred by the Indemnitee with respect to the defense of such claim, action or proceeding notwithstanding any participation by claim in accordance with the Indemnitee therein.
foregoing provisions within ten (h10) If the Indemnitee subsequently recovers all or part business days after receipt of the Third Party Claim from any other person legally obligated to pay notice of the claim, the Indemnitee shall forthwith repay Indemnified Party will have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefore in accordance with this Article 8; provided that the Indemnified Party will not be entitled to consent to the Indemnitor entry of any judgment or enter into any settlement of such claim that does not include as an unconditional term thereof the amounts recovered up giving by each claimant or plaintiff to an amount not exceeding each Indemnifying Party of a release from all liability in respect of such claim without the payment made by prior written consent of the Indemnitor Indemnifying Party if, pursuant to or as a result of such consent or settlement, injunctive or other equitable relief would be imposed against the Indemnitee by way Indemnifying Party or such judgment or settlement could materially interfere with the business, operations or assets of indemnitythe Indemnifying Party.
Appears in 1 contract
Claims by Third Parties. Other than in In the case event that a Party (the “Indemnified Party”) shall become aware of any Contestclaim, which shall be governed by Section 9.7 of this Agreement, if proceeding or other matter (a party to this Agreement seeks indemnity hereunder with respect to a claim by a third party:
(a“Proceeding”) For the purposes of this Section 9.4, “Third Party Claim” means any demand which has been made on, or communicated to the Purchaser, the Shareholders or the Company by or on behalf of any Person other than the entities aforementioned in this Section 9.4(a) and which, if maintained or enforced, may result in a claim for indemnification of the nature described in Section 9.2 or 9.3 of this Agreement being made.
(b) Promptly upon receipt by Indemnitee of notice of any Third Party Claim in respect of which the Indemnitee proposes other party (the “Indemnifying Party”) agreed to demand indemnification from indemnify the IndemnitorIndemnified Party pursuant to this Agreement, the Indemnitee shall forthwith give notice to that effect Indemnified Party shall, having regard to the Indemnitor.circumstances, give timely written notice thereof, and in any event within 60 days after becoming aware of a Proceeding, to the Indemnifying Party. Such notice shall specify with reasonable particularity (to the extent that the information is available):
(ca) The Indemnitor the factual basis for the Proceeding; and
(b) the amount of the Proceeding if known. A failure or delay in the giving of notice by the Indemnified Party shall not relieve the indemnifying party from any liability except to the extent that the Indemnifying Party is materially prejudiced by the failure or delay in giving such notice. In the case of third party claims, the Indemnifying Party shall have the rightoption at its own expense: (i) to conduct any proceedings or negotiations in connection therewith; (ii) to take all other steps to settle or defend any such claim; and (iii) to employ counsel of the Indemnifying Party’s choosing and approved by the Indemnified Party, exercisable acting reasonably, to contest any such claim in the name of the Indemnified Party or otherwise. The Indemnifying Party may not compromise or settle any claim without the Indemnified Party’s prior written consent, which may not be unreasonably withheld or delayed. The Indemnified Party shall be entitled to participate at its own expense and by giving notice its own counsel in any proceedings relating to any third party claim. The Indemnifying Party shall, within ten (10) days of receipt of the Indemnitee not later than 30 Indemnification Notice, notify the Indemnified Party of the intention to assume the defence of any such claim. If the Indemnifying Party shall decline to assume the defence of any such claim, or shall fail to notify the Indemnified Party within ten (10) days after receipt of the notice described in Section 9.2 (c) Indemnification Notice of the Indemnifying party’s election to defend such claim or 9.3(c), as the case may be, fails to diligently defend such claim after electing to assume the control of the defense, compromise or settlement of the Third Party Claim.
(d) Upon the assumption of control by the Indemnitor as aforesaidconduct, the Indemnitor shallIndemnified Party shall defend such claim and the expenses of all proceedings, at its expense, diligently proceed with the defense, compromise contests or settlement of the Third Party Claim at the Indemnitor’s sole expense, including employment of counsel reasonably satisfactory to the Indemnitee, and lawsuits in connection therewith, the Indemnitee shall cooperate fully, but at the expense of the Indemnitor, to make available to the Indemnitor all pertinent information and witnesses under Indernnitee’s control and to make such assignments and take such other steps as in the opinion of counsel for the Indemnitor are necessary to enable the Indemnitor to conduct such defense, provided always that the Indemnitee shall be entitled to reasonable security from the Indemnitor for any expense, costs or other liabilities to which it may be or may become exposed by reason of such cooperation.
(e) The final determination respect of any such Third Party Claimclaims (including, including all related costs and expenses, will be binding and conclusive upon the parties hereto as to the validity or invalidity, as the case may be, of such Third Party Claim against the Indemnitor hereunder.
(f) Should the Indemnitor fail to give notice to the Indemnitee as provided in clause (c) hereof or in the event the Indemnitor declines to undertake the defense of any Third Party Claim, action or proceeding when first notified thereofwithout limitation, the Indemnitee shall keep the Indemnitor advised as to the current status fees and progress thereof. The Indemnitee agrees not to make any offer disbursements of settlement without first having provided five (5counsel) days advance written notice thereof to the Indemnitor.
(g) In the event the Indemnitor undertakes the defense of any such claim, action or proceeding, the Indemnitee shall nevertheless be entitled to participate in (but not direct) the defense thereof with counsel of its own choice and at its own expense, and the parties agree to cooperate fully with one another in connection with the defense and/or settlement thereof; provided, however, that any decision to settle any such claim, action or proceeding shall be at the Indemnitor’s sole discretion. The foregoing notwithstanding, except with the prior written consent of the Indemnitee, which shall not be unreasonably withheld, no Indemnitor, in the defense of any such claim or litigation, shall consent to entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnitee or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee of a release from all liability with respect to such claim or litigation. From and after delivery of the notice referred to in Section 9.4(c) above, the Indemnitor shall be relieved of the obligation to reimburse the Indemnitee for any other legal, accounting or other out-of-pocket costs and expenses thereafter incurred borne by the Indemnitee with respect to the defense of such claim, action or proceeding notwithstanding any participation by the Indemnitee thereinIndemnifying Party.
(h) If the Indemnitee subsequently recovers all or part of the Third Party Claim from any other person legally obligated to pay the claim, the Indemnitee shall forthwith repay to the Indemnitor the amounts recovered up to an amount not exceeding the payment made by the Indemnitor to the Indemnitee by way of indemnity.
Appears in 1 contract
Sources: Mining Lease and Option to Purchase Agreement (Max Resource Corp.)
Claims by Third Parties. Other than in With respect to claims made by third parties, the case of any Contest, which Indemnifying Party shall be governed by Section 9.7 of this Agreement, if a party to this Agreement seeks indemnity hereunder with respect to a claim by a third party:
(a) For the purposes of this Section 9.4, “Third Party Claim” means any demand which has been made on, or communicated to the Purchaser, the Shareholders or the Company by or on behalf of any Person other than the entities aforementioned in this Section 9.4(a) and which, if maintained or enforced, may result in a claim for indemnification of the nature described in Section 9.2 or 9.3 of this Agreement being made.
(b) Promptly upon receipt by Indemnitee of notice of any Third Party Claim in respect of which the Indemnitee proposes to demand indemnification from the Indemnitor, the Indemnitee shall forthwith give notice to that effect to the Indemnitor.
(c) The Indemnitor shall have the right, exercisable by giving notice to the Indemnitee not later than 30 days after receipt of the notice described in Section 9.2 (c) or 9.3(c), as the case may be, entitled to assume the control of the defense, compromise defense of such action or settlement of the Third Party Claim.
(d) Upon the assumption of control by the Indemnitor as aforesaid, the Indemnitor shall, at its expense, diligently proceed claim with the defense, compromise or settlement of the Third Party Claim at the Indemnitor’s sole expense, including employment of counsel reasonably satisfactory to the IndemniteeIndemnified Party, and in connection therewithprovided, the Indemnitee shall cooperate fullyhowever, but at the expense of the Indemnitor, to make available to the Indemnitor all pertinent information and witnesses under Indernnitee’s control and to make such assignments and take such other steps as in the opinion of counsel for the Indemnitor are necessary to enable the Indemnitor to conduct such defense, provided always that the Indemnitee shall be entitled to reasonable security from the Indemnitor for any expense, costs or other liabilities to which it may be or may become exposed by reason of such cooperation.that:
(ei) The final determination of any such Third the Indemnified Party Claim, including all related costs and expenses, will be binding and conclusive upon the parties hereto as to the validity or invalidity, as the case may be, of such Third Party Claim against the Indemnitor hereunder.
(f) Should the Indemnitor fail to give notice to the Indemnitee as provided in clause (c) hereof or in the event the Indemnitor declines to undertake the defense of any Third Party Claim, action or proceeding when first notified thereof, the Indemnitee shall keep the Indemnitor advised as to the current status and progress thereof. The Indemnitee agrees not to make any offer of settlement without first having provided five (5) days advance written notice thereof to the Indemnitor.
(g) In the event the Indemnitor undertakes the defense of any such claim, action or proceeding, the Indemnitee shall nevertheless be entitled to participate in (but not direct) the defense thereof with counsel of its own choice and such claim at its own expense, expense and to employ counsel at its own expense to assist in the parties agree to cooperate fully with one another in connection with the defense and/or settlement thereof; provided, however, that any decision to settle any handling of such claim, action or proceeding shall be at the Indemnitor’s sole discretion. The foregoing notwithstanding, except with the prior written consent of the Indemnitee, which shall not be unreasonably withheld, ;
(ii) no Indemnitor, in the defense of any such claim or litigation, Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that provides for (x) does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim, or (y) if, pursuant to or as a result of such consent or settlement, injunctive or other nonmonetary equitable relief affecting would be imposed against the Indemnitee Indemnified Party or such judgment or settlement could materially interfere with the business, operations or assets of the Indemnified Party; and
(iii) if the Indemnifying Party does not assume control of the defense of such claim in accordance with the foregoing provisions within the earlier of five days prior to the time for response set in any legal proceeding or thirty (30) days after receipt of notice of the claim, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party will promptly reimburse the Indemnified Party therefor in accordance with this Article 8; provided that the Indemnified Party shall not be entitled to consent to the entry of any judgment or enter into any settlement of such claim that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee each Indemnifying Party of a release from all liability with in respect to of such claim or litigation. From and after delivery without the prior written consent of the notice referred Indemnifying Party if, pursuant to in Section 9.4(c) aboveor as a result of such consent or settlement, injunctive or other equitable relief would be imposed against the Indemnitor shall be relieved Indemnifying Party or such judgment or settlement could materially interfere with the business, operations or assets of the obligation to reimburse the Indemnitee for any other legal, accounting or other out-of-pocket costs and expenses thereafter incurred by the Indemnitee with respect to the defense of such claim, action or proceeding notwithstanding any participation by the Indemnitee thereinIndemnifying Party.
(h) If the Indemnitee subsequently recovers all or part of the Third Party Claim from any other person legally obligated to pay the claim, the Indemnitee shall forthwith repay to the Indemnitor the amounts recovered up to an amount not exceeding the payment made by the Indemnitor to the Indemnitee by way of indemnity.
Appears in 1 contract
Sources: Asset Purchase Agreement (Healthplan Services Corp)